HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

WP(C) No. 2602/2023

Reserved on: 15.02.2024

Pronounced on: 05.06.2024

1. Sh. Chaman Kumar (Age 27 years) S/o Late Sh. Bodh Raj, R/o Village

Jhajjar Kotli, Tehsil Dansal, District Jammu

2. Sh. Satish Kumar (Age 33 years) S/o Late Sh. Bodh Raj, R/o Village

Jhajjar Kotli, Tehsil Dansal, District Jammu

3. Sh. Yog Raj (Age 48 years) S/o Late Sh. Dharam Chand R/o Village

Jhajjar Kotli, Tehsil Dansal, District Jammu

4. Sh. Ganesh Dass (Age 38 years) S/o Late Sh. Dharam Chand R/o Village

Jhajjar Kotli, Tehsil Dansal, District Jammu

5. Sh. Jugal Kumar (Age 36 years) S/o Late Sh. Dharam Chand R/o Village

Jhajjar Kotli,Tehsil Dansal, District Jammu

…. Petitioner/Appellant(s)

Through:- M/s R.K.S. Thakur, Anandita Thakur

and Neha Abrol, Advocates

V/s

1. UT of J&K through Commissioner-cum-Secretary, Revenue Department,

Civil Secretariat, Jammu

2. Financial Commissioner (Revenue), J&K Government, Jammu.

3. Divisional Commissioner, Jammu

4. Deputy Commissioner, Jammu

5. Collector Land Acquisition (Assistant Commissioner, Revenue), Jammu

6. National Highway Authority of India, through its Project Director, PIU,

Udhampur, 1

st

Floor near Royal Enfield Show Room, NH-44, Village

Battal Ballian, Udhampur

…..Respondent(s)

Through: Mrs. Monika Kohli, Sr. AAG for R-1 to 5

Mr. R.K. Gupta, Sr. Advocate with

Mr. Sunny Mahajan, Advocate for R-6

CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

JUDGMENT

01. Petitioners seek quashing of final award bearing No. ACR/LA/ NHAI/

F-Award/T.Parking/2017-18/325-31, dated 10.07.2017, to the extent of land

measuring 3 Kanals 8 Marlas comprising of Khasra No. 134-min situated at 2024:JKLHC-JMU:1766

WP(C) No. 2602/2023 Page 2 of 10

Village Jhajjar Kotli, which is owned and possessed by them. A further prayer

is sought for quashing of Notification No. LA/ACR/ NHAI/ Jhajjar

Kotli/2016-17/88-95, dated 30.04.2016, issued by respondent No. 5 under

Section 4(1) of the J&K State Land Acquisition Act, Svt. 1990 (hereinafter

referred to as ‘the Act’), whereby, the above-mentioned land of the petitioners

has been notified at the instance of respondent No. 6 for truck parking

adjoining to National Highway.

02. The Project Director, National Highway Authority of India, placed an

indent with the Collector Land Acquisition, (Assistant Collector, Revenue),

Jammu, vide letter dated 06.01.2016 for acquisition of land measuring

approximately 2 hectares, for the construction of wayside amenities (Truck

Parking) along the National Highway in Village Jhajjar Kotli, Tehsil Dansal,

District Jammu. After completing all necessary documentation, a

notification under Section 4(1) was issued to invite objections from

interested persons, along with its publication in newspaper. No objections

were filed by the interested persons within the prescribed period.

Consequently, the acquisition proceedings concluded with the issuance of an

award dated 10.07.2017, amounting to Rs.2,32,45,900/-.

03. The petitioners filed a writ petition, i.e., WP(C) No. 1469/2020 titled

‘Chaman Kumar and others vs. UT of J&K and others’, seeking quashing of

notification dated 30.04.2016, issued under Section 4(1) of the Act and also

award dated 10.07.2017. They also sought setting aside of notices dated

07.02.2020 and 18.02.2020, directing them to remove shops and structures

possessed by them. This writ petition was considered and dismissed by this

Court vide judgment dated 28.12.2020 by holding as under:

“If seen in the light of enunciation of Law as referred to above, the

petitioners have not been able to make out a case for interference by this 2024:JKLHC-JMU:1766

WP(C) No. 2602/2023 Page 3 of 10

Court as larger public interest has to be given preference over the private

interest in the matter of acquisition of land for development of infrastructural

projects.”

04. The petitioners, aggrieved by the dismissal of the writ petition, filed an

appeal, i.e., LPA No. 157/2020, which was partly allowed and disposed of on

27.04.2021 by holding as under:

“44. Thus, applying the above principles of law laid down by the Apex Court

to the facts and circumstances of the case, even though we have found that

the notification under Section 4 of the Act was not in consonance with the

provisions of the Act, we do not intend to quash the same and instead

provide that ends of justice would be sub-served if the appellants are

provided by way of damages additional compensation which may be worked

out as on the date of this judgment in accordance with the provisions of the

Act by making a fresh award in respect of the land of the appellants only

within a period of three months and to pay the compensation accordingly

after adjusting the amount already paid within a further period of one month

and keeping it open for the appellants to avail the remedies available to them

in law for seeking enhancement, if necessary.”

05. The contention of the petitioners is that pursuant to the judgment

dated 27.04.2021, a fresh award was to be passed within a period of three

months, and compensation was to be paid to the petitioners. The

respondents, however, failed to comply with the directions and passed the

award within the prescribed time, which has resulted in setting aside of the

entire proceedings. In fact, respondent No.6 issued a notice for removal of

unauthorized construction to the petitioners under Subsection (6) of Section

26 of the Control of National Highways (Land and Traffic) Act, 2002,

calling upon them to remove the unauthorized occupation and construction

within a period of ten days from the date the notice was served. The notice

also stated that representation, if any, should be filed within a period of

seven days from the date of its service. This notice was received by the 2024:JKLHC-JMU:1766

WP(C) No. 2602/2023 Page 4 of 10

petitioners on 7

th

March 2023, and they submitted their reply/representation

through their counsel on 08.03.2023.

06. In their reply, the petitioners submitted that they are in possession of their

proprietary land and they are not, therefore, unauthorized occupants of the same.

On their land, their Dhaba has been existing, much before the acquisition

proceedings were initiated. The respondents have neither passed the fresh award

in terms of the judgment of the Hon’ble Division Bench nor any compensation

has been received by them, therefore, the acquisition proceedings have lapsed, as

such, the notices are not in accordance with law. It was submitted that the

petitioners are still owners in possession of the land and Dhaba and respondent

No. 6 has no right or interest in respect of the land.

07. The petitioners thereafter have approached this Court by filing the present

petition, challenging the acquisition proceedings as well as the notices issued to

them. It is submitted that the Hon’ble Division Bench of this Court, vide judgment

and order dated 27.04.2021, directed the respondents to make a fresh award and

pay compensation in respect of the petitioners' land within three months. The

respondents, however, failed to comply with the judgment regarding a fresh award

and payment of compensation within the period of four months as per the

judgment, as such, the entire acquisition proceedings have lapsed.

08. The Division Bench had set aside the final award dated 10.07.2017,

by holding that notification under Section 4 was not in consonance with the

Act and instead of quashing the entire proceedings, directed the respondents

to pass a fresh award in respect of the aforesaid land keeping in view the

public interest. The payment was to be made after adjusting the amount

already paid within a further period of one month. The petitioners were

given the liberty to avail the remedies available to them in law for seeking

enhancement. The petitioners further submit that as the award has not been 2024:JKLHC-JMU:1766

WP(C) No. 2602/2023 Page 5 of 10

passed within the stipulated period, therefore, the acquisition proceedings

are also hit by Section 11(b) of the Act.

09. In the writ petition, the petitioners have specifically pleaded that

respondents No. 1 to 5 had already acquired the land for widening the

National Highway from Jammu to Udhampur. In the earlier acquisition

proceedings, out of the total land measuring 6 Kanals 14 Marlas, 2 Kanals

and 6 Marlas have already been acquired. The question of parking trucks on

the roadside is misconceived and illogical, therefore, the entire acquisition

proceedings and the award are required to be quashed. The respondents, in

fact, do not require land for truck parking, which is not the purpose reflected

in the notification. The petitioners and their family members are poor

persons, and 3 Kanals and 6 Marlas of their land already stands acquired. In

the remaining 3 Kanals and 8 Marlas of land, they have established their

Dhaba and shop, and are earning their livelihood, therefore, the same cannot

be taken away, as it would deny the petitioners of their right to livelihood.

10. The respondent No.6-Project Director, PIU Udhampur, NHAI, in their

objections, have submitted that the petitioners have not approached this

Court with clean hands and they were aware of the fact that the judgment

dated 27.04.2021 stands complied with, and the reassessment on account of

compensation for the structure has already been completed by the Executive

Engineer, PWD (R&B), Division Nagtora, and a fresh award has been

passed by the Collector Land Acquisition (Assistant Commissioner,

Revenue), Jammu, vide order No. ACR/LA/T-Parking/Jhajjat Kotli/2023-

24/686-88 on 19.10.2023.

11. It is further submitted by respondent No. 6 that the Land Acquisition

Proceedings in respect of the land acquired for wayside amenities along the

National Highway at Village Jhajjar Kotli, Tehsil Dansal, District Jammu, have 2024:JKLHC-JMU:1766

WP(C) No. 2602/2023 Page 6 of 10

been carried out in accordance with the provisions of the Act, and due procedure

has been followed in the entire acquisition proceedings. It is submitted that after

the passing of the award on 10.07.2017, the land vested in the Government and

the petitioners have no right to occupy the same.

12. According to the respondents, the petitioners were well aware of the entire

acquisition proceedings, but they did not file any objections when the acquisition

proceedings were initiated. They only approached this Court for quashing of the

same after they came to know of the making of the award. It is denied that the

land in question was acquired for a purpose other than that which is mentioned in

the notification and final award, as it was acquired for the purpose of wayside

amenities (Truck Parking) and is for that purpose only.

13. It is further submitted that in compliance with the judgment passed by

the Hon’ble Division Bench on 27.04.2021, they have already passed a fresh

award, and compensation for the structure in question has been assessed at

the rate of Rs. 17,24,000/-. The said amount has also been deposited, as

such, the writ petition is required to be dismissed.

14. The petitioners are aggrieved of the fact that the respondents have

failed to pass the award within the prescribed period, therefore, the

notifications under Section 4 as well as the award dated 10.07.2017 are

without any sanctity, bad and are required to be set aside.

15. The challenge to the acquisition proceedings and notification is related to

the development of infrastructure along the Jammu-Srinagar National

Highway, which was a project of public importance, strategic and otherwise.

The view in the judgment dated 28.12.2020 was that even if the notifications

were not published in absolute conformity with the provisions of the Act, the

same could not be considered tenable in view of the project being of public

importance. This was in view of the law laid down by the Hon’ble Apex Court 2024:JKLHC-JMU:1766

WP(C) No. 2602/2023 Page 7 of 10

in "Ramniklal N. Bhutta and another vs. State of Maharashtra and

others", 1997 (1) SCC 134, wherein it was held as under:

“The power under Article 226 is discretionary. It will be exercised only in

furtherance of interests of justice and not merely on the making out of a legal

point. And in the matter of land acquisition for public purposes, the interests

of justice and the public purposes, the interests of justice and the public

interest coalesce. They are very often one and the same. Even in civil suit,

granting of injunction or other similar orders, more particularly of an

interlocutory nature, is equally discretionary. The courts have to weigh the

public interest vis-a-vis the private interest while exercising the power

under Article 226 - indeed any of their discretionary powers. It may even be

open to the High Court to direct, in case it finds finally that the acquisition

was vitiated on account of non-compliance with some legal requirement that

the persons interested shall also be entitled to a particular amount of

damages to be awarded as a lumpsum or calculated at a certain percentage

of compensation payable. There are many ways of affording appropriate

relief and redressing a wrong; quashing the acquisition proceedings is not the

only mode of redress. To wit, it is ultimately a matter of balancing the

competing interests. Beyond this, it is neither possible nor advisable to say.

We hope and trust that these considerations will be duly borne in mind by

the courts while dealing with challenges to acquisition proceedings.”

16. Similarly, in "Jaipur Metro Rail Corporation Ltd. vs. Alok

Kotahwala and others", AIR 2013 SCC 754, the Hon’ble Apex Court has

held as under:

“31. With respect to ecological balance, there has to be sustainable

development and such projects of immense public importance cannot he halted.

It is not the case that requisite permissions from the Central Government and

the State Government have not been obtained, thus, objections were flimsy. In

other petitions also pertaining to the same Project, this Court has held that such

project of immense public importance should not be put to halt. Thus, flimsy and

untenable objections were raised, which have been rightly rejected after due

application of mind.

x x x x

48. On merits, we find the order of interim stay passed by the single Bench to be

untenable, thus, we have no hesitation in setting aside the same. Suffice it to 2024:JKLHC-JMU:1766

WP(C) No. 2602/2023 Page 8 of 10

observe that in such cases of public importance of Metro Rail Project, there

should not be any interim stay, rather an effort should be made to decide the

matter finally at an early date. Staying the land acquisition proceedings is not

appropriate and would be against the larger public interest involved in such

projects. Thus, relying upon the decision in the case of Ramniklal N. Bhutta

(supra), we hold that in the matter of immense public importance like the

present one, the power to grant interim stay under Article 226 of the

Constitution should not be exercised in the normal course."

17. The Division Bench, while considering the appeal, held that they have

not been shown that the writ Court had acted in an arbitrary manner in passing

the impugned order or that its decision is legally unsound. Therefore, the

Division Bench found that even though the notification under Section 4 was not

in consonance with the provisions of the Act, it would not quash the same but

directed the respondents to pass the award. It would be profitable to reproduce

the following paragraphs of the judgment:

“37. It is settled that the forum of writ petition is not as a matter of right or

an appellate forum but is an extra ordinary remedy provided to check

miscarriage of justice which has to be exercised sparingly and at the

discretion of the court. It is not necessary to be exercised in each and every

case of infringement of a right. The court in exercise of its discretionary

jurisdiction has to balance the competing interests of the parties in such a

way that public interest prevails over the private one in granting relief

thereof.

38. It is also equally settled in law that the acquisition of land for public

purpose if challenged by any one person only or by the owner of a small piece

of the acquired land is not sufficient to vitiate the entire proceedings of

acquisition more particularly where there are no malafidies.

39. The Apex Court in ‘the Authorized Officer, Thanjavur and another versus

S. Naganatha Ayyar and others’, 1979 (3) SCC 466, observed that procedural

irregularities in acquiring the land in the absence of malafidies needs to be

overlooked. The development of infrastructure should not be hampered and

that scope of judicial review in such matters of land acquisition ought to be

very limited and the court must focus its attention more on social and 2024:JKLHC-JMU:1766

WP(C) No. 2602/2023 Page 9 of 10

economic justice and should not exercise a lethal blow on the entire

acquisition proceedings.

40. In ‘Ramnikhal N. Butta and another versus State of Maharashtra and

others’, AIR 1997 SC 1236, it has been observed that power of the High Court

under Article 226 is discretionary. It should be exercised in furtherance of

interest of justice and not merely on making out of legal points. It was also

observed that the High Court may devise ways and methods to adequately

compensate the person interested instead of quashing the acquisition

proceedings in its entirety.”

18. Per Contra, the petitioners submit that since the award was not passed

in terms of the judgment of the Hon’ble Division Bench within the stipulated

time, all the proceedings initiated by the notification issued under Section 4

on 10.04.2016, as well as the final award, have lapsed, as Section 11(b) of

the Act would be applicable to the land specifically owned and possessed by

the petitioners.

19. The respondents have passed the final award on 19.10.2023. It is settled

by both the above-referred judgments that larger public interest is to be given

preference over private interest in the matter of acquisition of land for

development of infrastructure projects. In this view of the matter, both the Courts

refused to interfere in the acquisition process. However, in the interest of the

petitioners, the Court directed the respondents to pass a fresh award.

20. The law being well settled, the only issue now is whether the delay in

passing the award would result in the lapsing of the entire acquisition

proceedings. Reliance placed on Section 11-B of the J&K Land Acquisition

Act is also misplaced, as the same is not applicable to the facts and

circumstances of the case.

21. The award was to be made as per the mandate of the judgment of the

Division Bench. The petitioners accepted the judgment of the Division Bench

which directed the respondents to pass the award within a period of three 2024:JKLHC-JMU:1766

WP(C) No. 2602/2023 Page 10 of 10

months and compensation to be made within a period of one month thereafter.

Though, the respondents have taken time to pass the award and there is delay in

the same, still the element of public interest cannot be overruled. The

petitioners, if aggrieved by the fact that the compensation has not been

adequately awarded or otherwise, can avail the remedy available to them.

22. The Division Bench did not quash the notification even after holding

that the same is not in consonance with the provisions only in view of the

public interest involved and had provided for damages by way of additional

compensation as on the date of the judgment. There is no change in the facts

and circumstances to warrant any different view. The respondents have

passed the award and the delay in passing the same would not result in

lapsing of the proceedings which were upheld by the Division Bench and

accepted by the petitioners.

23. In view of the aforesaid, there is no merit in this petition and the same

is, accordingly, dismissed along with connected application(s).

(Sindhu Sharma)

Judge

Srinagar:

05.06.2024

Michal Sharma/PS

Whether approved for reporting : Yes

2024:JKLHC-JMU:1766