Excelsior Correspondent
Srinagar, Sept 2: The High Court, in a significant judgment, has held that the land acquisition notification under the Land Acquisition Act of erstwhile J&K State would continue to apply for acquiring land for public purpose.
The Division Bench of Chief Justice N Kotiswar Singh and Justice M A Chowdhary has settled the issue in an appeal filed by the aggrieved land owners seeking compensation in lieu of acquiring their land for construction of Semi Ring Road under Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (RFCTLARR Act) which was applicable to the J&K UT under J&K Re-Organization Act 2019.
The authorities have denied to grant compensation under RFCTLARR Act on the ground that the notification for acquiring land has been issued under the old Land Acquisition Act and prior to coming into force of J&K Re-Organization Act as such (RFCTLARR Act) would not apply for awarding compensation.
The land owners, however, contended that the said notification did not include their land and their land was acquired by way of a fresh notification under Section 4(1) of the Act of 1990 on 17.03.2022 which could not have been applied into their case as J&K Re-Organization Act was in force at that time and they were entitled to compensation under Central Act i.e (RFCTLARR Act).
On the other hand, the Government counsel apprised the court that the entire land acquisition proceeding was initiated in the year 2016 and since the second notification was continuation of the process already initiated as such the provisions of the RCTLARR Act will not be applicable in the present case.
It has been submitted that the process for acquiring the land required for the Semi Ring Road around Srinagar City was initiated on 20.08.2016 and the notification under Section 4(1) of the J&K Land Acquisition Act, 1990 was issued on 28.03.2019 and the subsequent impugned notification was issued on 17.03.2022 by way of a corrigendum of the earlier notification issued on 28.03.2019 as such question of compensation under Central Act does not arise.
It has been contended by the Government counsel that as many as 45 villages were affected and all the landowners have been given adequate compensation after taking possession of the land as per the law, except for the appellants who are challenging the proceeding and award and are stalling the progress of the project and resisting handing over the possession of their land.
The DB has held that the second Notification dated 17.03.2022 was issued by way of corrigendum of the earlier Notification issued on 28.03.2019 under Section 4(1) of the J&K Land Acquisition Act, Svt. 1990 and if the same was issued by way of Corrigendum of the earlier notification then it cannot be said that by such Notification dated 17.03.2022, a fresh proceeding for acquiring the land was initiated by Corrigendum of a notification. “We would understand that it was issued by way of a correction of an existing notification by adding or deleting the names of some land owners to the original list”, DB said.
Court has clarified that necessary corrections were made and a new Notification was issued on 17.03.2022 by adding and deleting certain lands based on the alignment of the road and survey done and the new notification was not issued by abandoning the earlier Notification, but only certain changes were made in the earlier notification by incorporating some new lands which were not included in the earlier Notification issued on 28.03.2019.
“It may be also noted that even if the land of the appellants came to be included for the first time, it was clubbed with the land of others which were already included in the earlier notification. The fresh notification is not a stand-alone notification only in respect of the land of the appellants. Thus, the impugned Notification dated 17.03.2022 cannot amount to initiating a fresh land acquisition proceeding”, he DB added.
Court has also settled the issue raised about the legal effect of such Notification issued on 17.03.2022 when the Jammu and Kashmir Re-organization Act, 2019 came into operation resulting in the lapse of the Jammu and Kashmir Land Acquisition Act, Svt. 1990 and coming into operation of the Central Act of RFCTLARR Act.
“In this regard, it may be observed that Sub-clause (1) of Section 114 of the RFCTLARR Act, 2013 which deals with the saving clause of the Act provides that the Land Acquisition Act, 1894 is repealed and it has been further provided in sub-clause (2) of Section 114 of the RFCTLARR Act that save as otherwise provided in this Act, the repeal under sub-section (1) shall not be held to prejudice or affect the general application of Section 6 of the General Clauses Act, 1897 with regard to the effect of repeals”, the DB added.
Court clarified that any investigation or legal proceeding would continue and enforced as if the repealing Act (J&K Re-Organization Act) had not been passed. “Thus, even if the RFCTLARR Act came into operation repealing the Jammu & Kashmir Land Acquisition Act, by virtue of Section 6 of the General Clauses Act, 1897, the proceedings already initiated under the Jammu and Kashmir Land Acquisition Act, 1990 would continue”, read the judgment.
Court has disagreed with the contention of the Senior Counsel for the appellants that after enforcement of the Jammu and Kashmir Re-organization Act, 2019, with effect from 31.10.2019, the land acquisition proceedings have to be continued under the RFCTLARR Act.
Court has declined to interfere with the impugned second notification issued on 17.03.2022 and the subsequent award passed under the Jammu & Kashmir Land Acquisition Act, 1990 by disturbing the land acquisition proceeding.
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