Sanjay Dhar, J
1) The petitioners have sought a direction upon the respondents for payment of compensation in respect of 07 marlas of land comprised in Khasra Nos.557 and 558 situated at Qasba Bagat, Anantnag, which has been utilised by the respondents for construction of Chee-Anantnag road. An alternative prayer has been made by the petitioners that in case compensation is not paid to him, the respondents be directed to surrender possession of the aforesaid land in their favour. Besides this, the petitioners have also sought a direction upon the respondents to pay mesne profits for illegally occupying the aforesaid land for more than 37 years.
2) The facts emanating from the pleadings of the parties reveal that land acquisition proceedings in respect of land measuring 08 kanals 10 marlas in four villages i.e., Sarnal, Anchidora, Qasba Baghat and Khanabal, for construction of Qazibagh-Chee road, were initiated. The petitioners claim to be the owners of land measuring 16 marlas out of the aforesaid land which is comprised in Khasra Nos.557-min, 558-min, 1014/829/570 and 1014/829/570-min situated at Qasba Bhaghat, Anantnag. Notification under Section 4 of the Jammu and Kashmir Land Acquisition Act (hereinafter referred to as “the Act”) was issued on 04.12.1980, whereafter declaration under Sections 6 and 7 of the Act was issued on 18..03.1981. Notifications under Section 9 and 9-A of the Act were issued on 20.08.1981. During acquisition proceedings, R&B Department changed alignment of the road and, as such, a corrigendum was issued to all the aforesaid notifications. The acquisition proceedings were not taken to its logical conclusion for a long time and ultimately award came to be published by the Collector Land Acquisition, PWD, Anantnag, on 26.09.2001. On 04.12.2001, a communication came to be issued by Deputy Commissioner, Anantnag, to the Collector Land Acquisition, by virtue of which the Collector was asked to withdraw award dated 26.09.2001 in respect of the land in question keeping in view the provisions of Section 11-B of the Act.
3) The aforesaid communication dated 04.12.2001 was challenged by the petitioners by way of writ petition bearing OWP No.63/2003. The said writ petition was dismissed by this Court in terms of order dated 10.07.2007. While doing so, this Court held that the award in the present case has been made beyond the period as fixed by Section 11-B of the Act and, therefore, the entire proceedings for acquisition of the land lapsed, as such, the Collector was not competent to make any award under any provision of the Act.
4) The petitioners challenged the aforesaid judgment of the Writ Court by way of LPA No.169/2007 but without any success. The Division Bench vide its judgment dated 18th May, 2017, while dismissing the appeal of the petitioners and upholding judgment of the Writ Court, left it open to the petitioners to take the plea as regards their claim for compensation in respect of the land which has been occupied by the respondents or in the alternative to take back the possession of the said land, before an appropriate forum. It is in these circumstances the petitioners have filed the instant writ petition seeking a direction upon the respondents to pay compensation for the land which according to them has come under the road constructed by the respondents or in the alternative to retrieve the said land.
5) According to the petitioners they are owners of land measuring 02 kanals 10 marlas under Survey Nos.557 (1 kanal), 558 (19 marlas) and 669 (11 marlas of Shamilat land). It has been submitted that for construction of Anantnag-Chee link road, land of the inhabitants of the area including the land of the petitioners was acquired by the Government way back in the year 1978-80. It has been submitted that 07 marlas of land belonging to the petitioners, 02 marlas from Survey No.557 and 05 marlas from Survey No.558, has been occupied by the respondents for construction of the road and even an award was passed by the Collector in respect of this land but in view of the bar contained in Section 11-B of the Act, the acquisition proceedings lapsed and the compensation assessed by the Collector could not be paid to the petitioners. It has been contended by the petitioners that the respondents have no right to occupy the land of the petitioners without paying compensation to them or in the alternative to retrieve the said land to the petitioners. It has been contended that right to property is a fundamental right available to the petitioners and even otherwise under Article 300A of the Constitution of India, no person can be deprived of his property except with the authority law. It has been contended that action of the respondents in denying compensation to the petitioners for the land occupied by them is without authority of law.
6) The respondents have contested the writ petition by filing a reply thereto. In their reply, the respondents have submitted that the land has been acquired in the year 1978-80 as per petitioners’ own case whereas ownership right in their favour have been vested in the land in question in the year 1983 in terms of mutation No.958. It has been submitted that since the petitioners did not have any right or interest in the land in question at the relevant, as such, even as per the case of the petitioners, they are not entitled to any compensation. It has also been contended that as per the revenue record, land measuring 01 kanal 04 marlas is recorded under Survey No.558 out of which 19 marlas of land is Aabi Awal and 05 marlas is Gair Mumkin Bund. Similarly, land measuring 1 kanal Aabi Awal is recorded in Survey No.557. It has been further submitted that during pendency of the proceedings in LPA, the land in occupation of the petitioners was subjected to measurement and it was found that they are in possession of 01 kanal and 19 marlas of land. Apart from this, the petitioners had donated some portion of the land to the Mosque. On these grounds, it is submitted that no portion of the land belonging to the petitioners has been occupied by the respondents for construction of the road. Regarding land measuring 11 marlas of Shamilat under Survey No.669, it has been claimed by the respondents that the same is Shamilat Najayaz and the mutation in favour of the petitioners in respect of this portion of land has been set aside.
7) I have heard learned counsel for the parties and perused the record of the case.
8) Case of the petitioners in short is that they are owners in possession of land measuring 02 kanals 10 marlas under Survey No.557 and 558, out of which 01 kanal is comprised in Survey No.557, 19 marlas are comprised in Survey No.558 and 11 marlas of Shamilat land is comprised in Survey No.669. Copies of Khasra Girdawari and Jamabandi placed on record by the petitioners reflect that the predecessor-in-interest of the petitioner was owner in possession of 01 kanal of land in Khasra No.557 and 19 marlas in Khasra No.558. So far as the land measuring 11 marlas under Khasra No.669, which is, admittedly, Shamilat land, is concerned, the respondents claim that vide order No.DCA/SQ/15/189 dated 11.06.2015 of District Magistrate, Anantnag, the entries made on Section 4 Shamilat land stand quashed, meaning thereby that the entries in favour of the petitioners in respect of Khasra No.669 stands quashed. So, the claim of the petitioners is restricted to land measuring 01 kanal under Khasra No.557 and 19 marlas under Khasra No.558. The respondents have claimed that during pendency of the proceedings in LPA, measurement of the land which is actually in possession of the petitioners was conducted and it was found that they are in possession of 01 kanal and 18 marlas of land and they had admitted that they had donated some portion of their land to the Mosque.
9) While the petitioners admit that they have donated some portion of the land to the Mosque, they claim that the fact that the Collector had made an award in their favour in the year 2001 goes on to show that 07 marlas of land belonging to the petitioner has been occupied by the respondents for construction of the road. Reliance in this regard has been placed on Section 12 of the Act which provides that award once published becomes final and conclusive evidence, inter alia, as regards the persons interested, the true area and value of the land.
10) There can be no quarrel with the proposition that the award of the Collector is final and conclusive in respect of the aforesaid aspect but in the instant case, the award has been withdrawn by the Collector keeping in view the fact that the proceedings for acquisition of land had lapsed by operation of Section 11-B of the Act. This decision of the Collector has been upheld by the Writ Court and the Division Bench in appeal in the earlier round of litigation between petitioners and the respondents. Thus, when the award published by the Collector in the year 2001 is itself a nullity, the contents thereof cannot be conclusive proof of the matters dealt with in the said award.
11) If we have a look at the record of the case, it appears that during pendency of the LPA, a Commissioner was appointed under the directions of the Division Bench. A copy of the report of the Commissioner has been placed on record by the petitioners, which shows that the land which was in occupation of the petitioners was measured in their presence. As per the report of the Commissioner, about 02 kanals of land were found in possession of the petitioners. The learned Commissioner has taken into account 11 marlas of Shamilat land and concluded that the claim of the petitioners to the extent of 10 marlas is still subsisting which according to the learned Commissioner, after deducting 02 marlas donated by the petitioners to the Mosque, has been occupied by the respondents for construction of the road. However, the learned Commissioner has not taken into account the fact that mutation in respect of 11 marlas of Shamilat land attested in favour of the petitioners has been set aside. When 11 marlas of Shamilat land is deducted, the total land occupied by the petitioners would be equal to the land actually owned by them which is comprised in Khasra Nos.557 (01 kanal) and 558 (19 marlas).
12) The above are only tentative observations based upon the material on record but the question as to whether any land of the petitioners has been occupied by the respondent, can be finally determined only by a civil court. One thing is clear that the claim of the petitioners that 07 marlas of their land has been occupied by the respondents, has been seriously disputed by the respondents and the dispute about the claim of the petitioners raised by the respondents is not based upon illusory grounds. The determination of the question as to whether any land of the petitioners has been occupied by the respondents for construction of the road and if so, how much, would involve deciding intricate questions of fact. Such questions can be determined only after examining the witnesses and subjecting them to cross-examination which is not possible in writ proceedings.
13) In view of the above, the writ petition is dismissed, leaving it open to the petitioners to avail appropriate remedy before the Civil Court.
