Nisar Ahmad Tantray V. Union Territory of JK & Ors.

WP(C)/1331/2020

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The case involves a dispute among three brothers over the compensation for ancestral land acquired by the government for public use under the Prime Minister Grameen Sadak Yojana. The land, which included a residential house, was partially acquired and compensation was negotiated privately. One brother, not involved in the negotiations, contested the proceedings and the distribution of compensation, leading to this writ petition. The court examined the jurisdiction of the District Legal Services Authority in adjudicating the compensation dispute and the validity of the private negotiations conducted without the participation of all co-owners.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 800214 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 14-09-2022
• Assessment Year: misc
• Laws Referred To: J&K Land Acquisition Act, J&K Legal Services Authority Act, 1997, J&K Legal Services Authority Regulation, 1998
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: ALLA UD DIN GANAI; SHUJAAT HUSSAIN
• Assessee Lawyers: RIZWAN UL ZAMAN
• Keywords: Civil Suit; Compensation; Jurisdiction; Land Acquisition; Legal Services Authority; Private negotiation
• Section: 11; 6; 8; 18; 4; 31

Judgement Text

" WP (C) No. 1331/2020 Page 1 of 8 Sr. No. 22 Regular Cause List IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP (C) No. 1331/2020 Nisar Ahmad Tantray & Anr. …Petitioner(s) Through: Mr. Rizwan-ul-Zaman, Adv. Vs. Union Territory of JK & Ors. ...Respondent(s) Through: Mr. Alla-ud-din Ganai, AAG for 1 to 8 Mr. Shujaat Hussain, Adv. for 9. CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR JUSTICE PUNEET GUPTA, JUDGE O R D E R 14.09.2022 1. Two petitioners and the private respondent No. 9 are all brothers being sons of Late Abdul Khaliq Tantray. They claim that they are the owners of the ancestral land measuring 1 Kanal, whereupon they have constructed a double storeyed tin roof residential house falling in Survey No. 612 occupying an area of 3 marlas and 1 sirsai. The said residential house along-with the land beneath the same measuring 3 marlas and 1 sirsai had come under the land acquisition vide notification dated 28.10.2017 issued under Section 4 of the J&K Land Acquisition Act. 2. The acquisition, payment of compensation and the matter in relation to proceedings before the Chairman, District Legal Services Authority, Anantnag are subject matter of dispute in the present writ petition. 3. It may be noted that there is a private dispute in relation to the rights to receive compensation inter-se the private parties i.e., the petitioners and the private respondent No. 9. 4. Learned counsel for the petitioners submits that he has instructions not to press the writ petition on behalf of petitioner No. 1 and, therefore, his name be deleted from the array of parties in the writ petition. Since WP (C) No. 1331/2020 Page 2 of 8 petitioner No. 1 does not want to press the writ petition, we direct for the deletion of his name. The petition is accordingly being considered only at the behest of petitioner No. 2 in relation to disputes vis-à-vis Petitioner No. 2 and the private respondent No. 9. 5. The petitioner through the medium of this writ petition wants quashing of the proceedings pending before the Chairman, District Legal Services Authority, Anantnag which probably have been initiated on an application filed by respondent No. 9 for the purposes of release of compensation. The petitioner has also prayed for quashing of the proceedings of the meeting held on 21st November 2017 before the Private Negotiation Committee for the settlement of the compensation in respect of the above land. The petitioner further prays for a direction to refer the disputes under Section 18 and 31 of the Act to the Civil court and for a direction commanding the Collector, Land Acquisition, Anantnag/Assistant Commissioner, not only to make the reference as above, but to release the compensation settled by the Private Negotiation Committee equally to all the three brothers or to pass a fresh award. 6. It is an admitted fact that certain land was proposed to be acquired for the public purpose of the construction of a road under the Prime Minister Grameen Sadak Yojana from Thajiwara-Drandigam to Guree-Veeri. The notification proposing to acquire the above land including that of the petitioner and the contesting respondent was issued on 30th October 2017 under Section 4 of the Act and that thereafter no steps were taken to finally acquire the land by issuing a declaration under Section 6 of the Act. It is also an admitted position on record that no award in respect of the aforesaid acquisition was ever passed under Section 11 of the Act, though the possession of the land was taken over and a road was constructed over it. The taking of the possession stands established by the demolition certificate dated 21st April 2018. 7. It is also an admitted fact that in respect of the aforesaid land, proceedings for acquiring it by private negotiation were also initiated and in that connection, a meeting of the Private Negotiation WP (C) No. 1331/2020 Page 3 of 8 Committee was held on 21st November 2017 with the contesting respondent No. 9 only for the reason that he alone along-with the mother was found to be in possession at that time. The petitioner and his other brother were living separately at some other place, thus, they were not part of the negotiation. 8. The petitioner contends that since the house and the land belonged to his father, all the three brothers have equal share and in the event of acquisition of the said property, all of them are entitled to equal share in compensation. The settlement arrived at before the Private Negotiation Committee is non-est as the petitioner was not given any notice or opportunity of hearing to participate in the said meeting. The petitioner cannot be denied right of participation in the meeting only on the basis that he was not living in the house at the relevant time. In case, the authorities feel that there is a dispute regarding entitlement of the compensation or its apportionment, the matter ought to be referred under Section 18/31 of the Act to the civil court. The Chairman, District Legal Services Authority, Anantnag has no authority in law or jurisdiction to intervene in the matter. 9. The State respondent Nos. 1 to 7 have filed reply to the writ petition accepting that the petitioner and respondent No. 9 are real brothers along-with petitioner No. 1 whose name has been directed to be deleted. Their father was the actual owner in possession of the aforesaid house. The property was acquired from the possession of the private respondent No. 9 and his mother. The petitioner and his other brother were living elsewhere and were not in physical possession of the acquired land/structure and that the petitioner submitted an affidavit attested by the JMIC, Anantnag that he has no objection if the compensation is released in favour of his brother-respondent No. 9. The petitioner having submitted an affidavit of no objection in favour of the private respondent No. 9 cannot at this stage dispute the disbursement of compensation to him and ask for any share therein. The private respondent No. 9 had made an application to the Chairman, District Legal Services Authority, Anantnag for the release of the payment settled in the Private Negotiation Committee. It is an admitted position that the petitioner or his brother were not parties to WP (C) No. 1331/2020 Page 4 of 8 the private negotiations. The private respondent No. 9 has already withdrawn 2/3rd of the amount to the tune of Rs. 6,98,164/- after excluding the income tax etc. 10 The respondent No. 9 in the counter affidavit filed separately has pleaded the same things as mentioned in the reply of respondent Nos. 1 to 7. In addition, he has stated that a civil suit between the private parties in respect of the above property/compensation is sub-judice which was filed by the petitioner and in view of the above, the writ petition is not maintainable. 11. The petitioner is not only seeking compensation by means of this writ petition, but in effect he is challenging the proceedings which are pending before the Chairman, District Legal Services Authority, Anantnag and the settlement arrived at between the Private Negotiation Committee on 21st November 2017 with regard to the compensation of the acquired land. The said two aspects of the matter are beyond the purview of the civil court and the pendency of the civil suit, if any, regarding the rights of the parties in the property does not debar the petitioner from claiming the above two reliefs. 12. We first of all proceed to examine if any proceedings as alleged in respect of the matter of payment of compensation, its apportionment entitlement are maintainable before the Chairman, District Legal Services Authority, Anantnag. 13. The petition reveals that an application was filed by the private respondent No. 9 before the Deputy Commissioner, Anantnag for the release of the compensation in respect of the above land which probably came up for consideration before the Chairman, District Legal Services Authority, Anantnag. The State respondents have categorically stated in the counter affidavit that they have not referred the dispute to the Chairman, District Legal Services Authority and it is the private respondent No. 9 who had preferred an application before him and sought his indulgence. 14. We have not been shown any such application except the one addressed to the Deputy Commissioner, Anantnag. It appears on the WP (C) No. 1331/2020 Page 5 of 8 said application, even bailable warrants were issued against the Collector, Land Acquisition, Anantnag vide order dated 24th September 2018. The Collector, Land Acquisition, Anantnag had to prefer an application seeking cancellation of the warrant and that the payment of the remaining compensation to the private respondent No. 9 has been stopped on account of the civil dispute between the brothers and on the request for stoppage of payment, made by the Tehsildar, Bijbehara. 15. Notwithstanding the exact origin of the proceedings before the Chairman, District Legal Services Authority, Anantnag, it becomes our bounden duty to examine if such proceedings are maintainable. 16. Section 8 of the J&K Legal Services Authority Act, 1997 provides for the functions of the District Legal Services Authority namely to coordinate the activities of the Tehsil, Legal Services Committee and other legal services in the district; organizing Lok Adalats within the district and to perform such other functions as the State authority may fix by regulations. The Act nowhere provides and empowers the District Legal Services Authority to adjudicate any dispute between the parties. It may be other thing that District Legal Services Authority may organize Lok Adalat and get the matter resolved therein, but it has no independent power or jurisdiction to take up matters for adjudication. Even the J&K Legal Services Authority Regulation, 1998 do not provide anything with regard to the functions and duties of the District Legal Services Authority. In fact, none of the parties have placed any Rules, Regulations or any Scheme which may provide for the functions of the Chairman/District Legal Services Authority or that they have the power to entertain inter-se disputes between the parties and to adjudicate or to resolve them. 17. In view of the aforesaid facts and circumstances, we find that the Chairman, State Legal Services Authority lacks complete jurisdiction in entertaining any application from any party in connection with the release of payment of compensation for the acquired land. Accordingly, all proceedings, if any, before the Chairman, District Legal Services Authority, Anantnag, in connection with the WP (C) No. 1331/2020 Page 6 of 8 acquisition of land or release of compensation thereof are not maintainable and are without jurisdiction. 18. This brings us to the next point regarding the validity and correctness of the settlement held in the meeting dated 27th November 2017 of the Private Negotiation Committee. 19. It is an admitted position that the property acquired was the joint property of all the three brothers in which petitioner also had 1/3rd share though he may not have been in physical possession of the same at the relevant time. Therefore, on acquisition of the said property, the settlement of compensation if any had to be in consultation with him also. 20. The J&K Land Acquisition Rules for public purpose vide Chapter (C) provides for acquisition of land by private negotiation. Rule 22 of the aforesaid rules categorically provides that the Committee conducting the negotiation must in each case obtain from the vendor a complete abstract of title supported by all documents of title and strict proof of all matters and facts forming a link in the chain of his title. It is only thereafter that the procedure for negotiation has to be entered and upon conclusion, where the possession of the land has been taken without acquisition proceedings, the Committee consisting of Deputy Commissioner, District Superintending Engineer, District Legal Officer of the Department concerned (indenting department) shall be competent to enter into an agreement with the person interested in the land to conclude the bargain by private negotiation. Rule 24 of the Rules provide that the negotiation stands concluded with the execution of a Sale Deed on proper stamp. In other words, acquisition by private negotiation would stand concluded with the execution of the Sale Deed in favour of the Government. It is important to mention here that the agreement and the sale deed have to be executed by all the persons interested in the land and not only by any one of them. 21 We do not find on record any sale deed in respect of the land notified to be acquired which may have been executed by the owners in favour of the State Governments so as to convey the title. Accordingly, in our opinion, the proceedings for acquisition by negotiation do not stand completed. WP (C) No. 1331/2020 Page 7 of 8 22. Since after issuance of the notifications under Section 4 of the Act, no further proceedings were taken to acquire it by issuing a declaration under Section 6 of the Act followed by an award under Section 11 of the Act, it is amply clear that the land acquisition proceedings are incomplete and the land had not been acquired compulsorily under the Act. 23. In short, the land acquisition proceedings in respect of the above land do not stand completed either under the Act or through acquisition by private negotiation. Moreover, the negotiations cannot be between the Committee and one of the owners. It has to be with all the co-owners or the persons having interest in the property. This is the mandate of Rule 22 of the Rules and we have not been shown any material that any effort was made to negotiate the matter with all the co-owners of the property. 24. The mere fact that the petitioner has submitted an affidavit having no objection for the release of compensation in favour of one of his brother i.e, respondent No. 9 would not mean that he is seized to be a vendor or a person interested in the property so as to exclude him from the negotiation. Moreover, at no point of time, the genuineness of the said affidavit was got examined or the petitioner was called upon to deny and admit the same. Thus in the facts and circumstances of the case, we are of the opinion that the aforesaid land do not stand officially acquired even though its possession has been taken over by the State respondents and they have constructed a road and the settlement is bad for want of non-participation of the petitioner. 25. Since the land has been utilized by the State respondents, erstwhile owners of the land are certainly entitled to compensation. The amount of compensation settled by the Private Negotiation Committee is not disputed and there is no claim for its enhancement rather petitioner wants the release of the payment of compensation already fixed in his favour in equal share. Thus, there is no point in quashing the settlement of the Private Negotiation Committee dated 21st November 2017. Since the right to the petitioner to receive any share in the said compensation is subject matter of civil suit, the remaining payment of WP (C) No. 1331/2020 Page 8 of 8 compensation shall be disbursed subject to the decision of the civil dispute pending between the private parties. 26. In the facts and circumstances as there is no award, there is no question of any direction for sending a reference either under Section 18 or 31 of the Act to the civil court. 27. Accordingly, a Writ of Certiorari is issued quashing the proceedings before the Chairman, District Legal Services Authority, Anantnag and subjecting the payment of compensation to the petitioner in terms of the settlement dated 21st November 2017 of the Private Negotiation Committee subject to the decision of the civil suit. 28. The writ petition is allowed. (PUNEET GUPTA) (PANKAJ MITHAL) JUDGE CHIEF JUSTICE SRINAGAR 14.09.2022 Altaf Whether the order is reportable? Yes/No "