Excelsior Correspondent
Srinagar, May 17: The Division Bench of High Court today set aside the writ court judgment whereby the land acquisition proceedings by the authorities were held to be illegal and unsustainable in law and referred the matter again to writ court for fresh consideration of the matter.
The land acquisition proceedings were held by the authorities in 2004 for the purpose of widening of Indira Gandhi (IG) Road in Srinagar and for construction of Rambagh-Jehangir Chowk flyover. The properties alongside the IG road were required to be acquired along with the properties in dispute for the purposes of the project.
In pursuance to notification, a High Level Committee constituted by the then Government entered into negotiations with the claimants and consequently many claimants agreed with the decision taken by the High Powered Committee and surrendered the possession to the indenting department.
However, with regard to the disputed structures the negotiations were not successful and further proceedings were undertaken by the Collector in terms of the Act and was decided that declaration under Section 6, 7 & 17 of the Land Acquisition Act is to be issued from Deputy Commissioner (with Financial Commissioner) to the Commissioner/ Secretary to Government, Revenue Department.
The Government then issued notification No. 323-RD of 2008 dated 16.10.2008 under Section 6, 7 & 17 of the Land Acquisition Act with a direction to take possession of the land of disputed structures to be acquired subject to the completion of all the formalities under the Act and later on, some of the structures for which the notification was earlier issued were de-notified in the year 2009 in pursuance to the communication from the Executive Engineer (R&B).
The structures de-notified were mentioned in the de-notification notice. After the issuance of de-notification the respondent-Collector again issued notice in terms of Section 6 of the Act on 11.01.2010. The notification under Section 9 and 9A of the Act also came to be issued by the Collector on 18.11.2010. On the completion of the formalities the Collector passed the final award on 10.12.2010 which was challenged by the claimants before the writ petition.
They challenged the award in acquisition of the land on the ground that the Government did not issue the fresh notification in terms of Section 4 of the Act as there was modification of the original acquisition notice issued under Section 4 of the Act and, therefore, all the subsequent proceedings which took place in the matter were void abinitio and the award passed by the Collector was nullity.
The writ court in the year 2018 while allowing the petition of the aggrieved claimants decided that that compulsory acquisition was made by the then Government and also failed to provide 80% of the compensation to the claimants as assessed by the Collector before taking possession as required under Section 17 of the Act. The writ court as such held that the said action of Collector is as an illegal exercise of the power and thus vitiated the award.
The Government while challenging the verdict of writ court in the instant appeal submitted the Writ Court did not appreciate the facts of the case in its right perspective and, more particularly, the fact that the final award has been passed by the competent authority with complete application of mind.
The Division Bench of Justice Ali Mohammad Magrey and Justice Puneet Gupta after perusal of the writ court verdict said, the Court did not deal with the issue of Section 4 of the Act as agitated by the petitioners in their writ petition as there is no finding by the Writ Court as to whether there was any requirement for issuance of fresh notice in terms of Section 4 of the Act in the facts and circumstances of the case after de-notification and the consequences which ought to follow in case compliance of Section 4 was to be held compulsory.
“The Writ Court has not addressed the main issue on the basis of which the writ petition was filed. The court also appears to have not delved into the impact of non-payment of compensation assessed by the Collector though the structures of the petitioners came to be demolished only after more than one year of passing of the award by the Collector”, DB recorded.
The Single Judge, DB added, has failed to record findings on the main issue. Although the arguments on legal aspects of the case have been made, this court is of the opinion that the legal issues in conjunction with factual aspects of the matter are required to be decided in the writ petition by the Writ Court.
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