Tenders (NIT) issued when land was not even acquired?

Collectors need to be sensitized on land acquisition laws
Tenders (NIT) issued when land was not even acquired?
Representational Picture

Recently the High Court of Jammu & Kashmir pronounced a landmark judgement by preventing district administration Ganderbal from acquiring land for widening and upgradation of Pandach-Beehama-Ganderbal road. Ironically the executing agency, PWD (R&B), around 4 years back had invited tenders (NIT) for this road project when the land was yet to be acquired through a proper process under the erstwhile J&K Land Acquisition Act 1934. After the invitation of tender the then collector land acquisition Ganderbal issued notification under the section 4 and no further notification was issued.

The J&K High Court division bench headed by Chief Justice Pankaj Mittal and Justice Sanjay Dhar on 28.7.2021 said that as no declaration has been made under section 6 of J&K Land Acquisition Act 1934 (now repealed ), the notification issued under section 4 is simply a proposal to acquire the land. The order reads :

“Admittedly so far there is no declaration under Section 6 of the Act so as to finally acquire the above land. The notification under Section 4 of the Act is simply a proposal to acquire the land and since the land has not yet been finally acquire, we are of the opinion that writ petition is premature and is not maintainable at this stage”

The High Court division bench disposed of the petition and asked the respondents (Govt) to proceed in accordance with the law if they were in need of the land for road widening project.

The High Court order further reads:

“Accordingly, the writ petition stands disposed of with a liberty to the respondents to proceed in accordance with law, if necessary, to acquire the land leaving it open for the petitioners to challenge the acquisition proceedings as and when the final notification to acquire the land is issued by the respondents. It is made clear that as the land has not been finally acquired, the ownership/ title of the land has not passed to the respondents and the petitioners are free to use it in the manner they so desire. 5. The writ petition is, accordingly, disposed of”

Pertinently if the fresh notification for the land acquisition is to be issued that has to be done in accordance with Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (RFCTLARR Act 2013) which is applicable in J&K post article 370 abrogation. This law is among few laws that could have benefited people of J&K but the Govt is being accused by farmers of not applying this law in many cases of land acquisition. In fact the aggrieved persons Abdul Rahim Bhat and others had gone to High Court with the same prayer.

The Collector land acquisition Ganderbal cannot issue section 6 notification under the J&K Land Acquisition Act of 1934 as the same is no more in operation post article 370 abrogation. Now a fresh notification has to be issued under Right to Fair Compensation law only which is enforced in J&K with effect from Oct 31st 2019

NIT before land acquisition?

The then Collector Land Acquisition Ganderbal issued a notification under section 4 of J&K Land acquisition Act 1934 on 21st October 2017. The Collector through the notification expressed intention to acquire around 23 kanals of land ( 3 acres aprox) for widening, construction and up gradation of Pandach – Beehama Ganderbal road in the Malshahibagh area of Tehsil and District Ganderbal.

Ironically much earlier to the issuance of section 4 notification the Collector land acquisition Ganderbal in association with the then Chief Engineer Public Works Department-PWD Roads & Buildings Kashmir and Executive Engineer PWD (R&B) Ganderbal issued a tender notice under (NIT) No: Fresh NIT 41 of R&B /Gbl/2017-18 Dated 31.05.2017. The e-tenders were invited from prospective bidders for construction and widening of the proposed road. The estimated cost of the project was Rs 1900.75 lakhs. Prior to the issuance of NIT the intending department comprising District Collector/Deputy Commissioner Ganderbal and Executive Engineer PWD (R&B) Ganderbal had prepared a Detailed Project Report (DPR) for execution of the work presumably on a misconceived notion that the entire land under the alignment for construction of the proposed road was the sole property of the Government and not of any individual subject of the area ?

It was only during the process of erection of the alignment posts through the private land of Abdul Rahim Bhat and others, the aggrieved land owners became conscious about the land grabbing by district administration Ganderbal. When the land owners raised their voice and went to meet district administration, it prompted the authorities to issue land acquisition notification under section 4 in October 2017 i.e six months later after floating of the NIT by PWD (R&B).

The land acquisition proceedings initiated by the then Collector Land Acquisition Ganderbal along with his boss Deputy Commissioner Ganderbal or even Chief Engineer PWD (R&B) was unconstitutional and illegal. The section 4 notification was issued after the NIT was already issued by the indenting/ executing department. Though notice under section (4) of repealed JK Land Acquisition Act 1934 was issued in 2017, no further steps in the direction of completing the land acquisition proceedings were taken. As such the very purpose of issuance of the section 4 notification has been rendered redundant and this was viewed seriously by the High Court division bench which called the issuance of section 4 notification simply a proposal to acquire land.

It was mandatory upon the Collector Land Acquisition Ganderbal to issue section 6 notification and then he had to make an award within 2 years time as well. If the awards are not made within 2 years from the date of issuance of section 6 notification in that case the entire land acquisition proceedings become null and void.

Srinagar Ring Road

As discussed in my previous articles on this subject similar legal fraud is being committed to forcibly acquire a huge chunk of agricultural land (aprox 500 acres) in Budgam district for construction of Srinagar Ring Road. The affected farmers want application of the Right to Fair Compensation Act in the same way as affected parties in Ganderbal wanted.

For illustration, the notification for Srinagar Ring Road project under section 4 was issued on 20th March 2017 regarding village Wathoora in Budgam. The declaration under section 6 was made in August 2017. It was thus mandatory for the Collector, land acquisition, Budgam, to finalise the acquisition process and make an award by July 2019 (within 2 years).

Section 11 of the JK's repealed land acquisition act of 1934 mandates the acquiring authority to complete acquisition proceedings within 2 years of declaring an intent to acquire the land under section 6 of the Act. If it fails to do so, the notification and proceedings lapse according to section 11-B of the 1934 Act (now repealed)

Technically Collector land acquisition Budgam has to issue fresh notification for Srinagar Ring Road land acquisition under the existing law but this is not done and instead repealed and obsolete law continues to be invoked. Is this empowerment of people post article 370 abrogation, I ask?

Unfortunately the High Court interim orders issued in the case of Ali Mohammad Akhoon, Ab Salam Bhat and G A Paul v/s UT of Jammu & Kashmir are not respected. In many villages force is used to take possession of land by authorities.

Conclusion

The J&K High Court division bench order on forcible land acquisition in Ganderbal has given some hope to affected land owners. Govt needs to respect this order and a fresh notification be issued under the Fair Compensation Act not only for road widening in Ganderbal but for the mega project like Srinagar Ring Road project as well. Revenue department needs to hold frequent workshops for the land acquisition collectors most of whom are not well versed with different land acquisition laws and many of them commit gross mistakes during land acquisition process and the ultimate sufferers are the poor land owners. Govt must hold the officials accountable who invited NIT first and then issued land acquisition notification in Ganderbal.

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