Excelsior Correspondent
Srinagar, Mar 21: High Court has observed that the forcible demolition under the garb of compulsory acquisition of land without providing adequate compensation is illegal exercise and directed the authorities to submit the case of adequate compensation for acquiring the land of petitioners for road widening before High Level Committee.
“In the present case the forcible demolition in the garb of compulsory acquisition without tendering payment of 80% of the compensation estimated by the Collector before taking the possession under Section 17 of the Act, is an illegal exercise of powers by the Collector, which vitiates the award”, Court of Justice M K Hanjura said.
Court observed that undoubtedly widening of road (Haft Chinar Indira Gandhi Road, Srinagar) was an important project and citizens have to make sacrifices for the success of this project.
However, Court added, that it does not mean that in the process the authorities do not even adopt humane approach and deprive them of their shelter mercilessly.
Quashing the award issued by the Collector, Circular Road Project, Srinagar whereby compensation was granted to the petitioner for taking their land in lieu of widening of Indira Gandhi road Srinagar, Justice Hanjura directed the authorities to place the case of petitioners before High Level Committee which is headed by Divisional
Commissioner Kashmir for adequate fixation and compensation.
“The cumulative effect of all that has been said and done above, is that the writ petition on hand is disposed of, and impugned Award dated 10.12.2010 bearing endorsement no. C/CRP/632-40 issued by the Collector, Circular Road Project, Srinagar, is quashed”, Justice Hanjura concluded.
Court after quashing the compensation award directed the concerned authorities to submit the case of the petitioners to the High Level Committee, headed by the Divisional Commissioner, Kashmir, for fixation and payment of adequate compensation for the building structures and in terms of the package related to such structure in the form of providing residential plots for dislocated families.
Court further directed the authorities to pay the compensation to the petitioners in lieu of their shops acquired from them on the analogy of similarly situated shopkeepers.
“The petitioners’ case shall be submitted by concerned respondents to the High Level Committee within a period of three weeks from the date copy of this order is served upon the Deputy Commissioner, Srinagar and the Collector, Circular Road Project, Srinagar”, Court directed.
After receiving the case of petitioners, Divisional Commissioner, Kashmir has been directed to take a decision in light of the directions for payment of adequate compensation and for providing the plot of the land in favour of the petitioners within a period of two months thereafter.
On the contention, raised by the State counsel, that as the petitioners were not party in the writ petition, which has been referred by the petitioners counsel as such the judgment rendered therein does not draw a parallel with them, Court said, is specious and phoney.
“It is not necessary in law that the petitioners or for that matter the parties hereunto this controversy should have been parties in the aforesaid cases. It is well settled law that generally legal positions laid down by the Court would be binding on all concerned even though some of them have not been made parties nor were served nor any notice of such proceedings given”, court said.
Referring to the verdict passed by one of the coordinate benches which holds good qua the present case as well, Justice Hanjura said, it is luculent that a judicial decorum and discipline is paramount and, therefore, a Coordinate Bench has to respect the judgments and orders passed by another Coordinate Bench and a pronouncement of law by a Division Bench of the Court is binding on a Division Bench of the same or a smaller number of Judges as well.
The Collector in opposition to the writ petition, submitted that the impugned award has been passed by the competent authority with complete application of mind to the facts and circumstances of the case and also in accordance with the law and the rules governing the field.
“As per the directions of the High Level Committee, the case was processed for the compulsory acquisition and Notification under Section 6&7 of the Act was approved by the District Collector and after considering the objections under Section 9 and 9A, the tentative award was approved by the District Collector and the final award in favour of the said structure holders, was announced by him, vide No. C/CRP/632-40 dated 10.12.2010 for an amount of Rs.16,85,790/- including 15% Jabirana under the Land Acquisition Act.
It is claimed that the petitioners are basically tenants and since there is no law as on date to rehabilitate such a person, only compensation has to be paid to the owner for the land and the structure with 15% Jabirana as per Land Acquisition, which has already been done in the present case.
Since there is no scope left with the Collector, the claim of the petitioners does not merit any consideration and it is only the High Level Committee which is empowered to benefit any rehabilitation package, which has not been accepted by the landlord of the petitioners.
The counsel appearing for the petitioners has vivaciously argued that the notification under section 4(1) of the Land Acquisition Act was issued more than 11 years back and the Collector woke up from deep slumber in 2008, i.e. more than four years after publication of the notification, and issued a notification under sections 6, 7 and 17 of the Land Acquisition Act on 16.10.2008.
Although the provisions of Section 17-A of the Act were sought to be invoked, yet the same were not followed and pursued at any point of the time during the entire proceedings conducted by the Collector.
“India is governed by a judicial system identified by a hierarchy of Courts, where the doctrine of the binding precedent is a cardinal feature of its jurisprudence. It used to be disputed that the Judges make the law. Today, it is no longer a matter of doubt that a substantial volume of the law governing the lives of citizens and regulating the functions of the State flows from the decisions of the superior courts”, read the judgment.
Taking note of the hierarchical character of the judicial system in India, Justice Hanjura said it is of paramount importance that the law declared by the Courts should be certain, clear and consistent.
“It is commonly known that the most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in the future cases”, Justice Hanjura said.
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