Dr Raja Muzaffar Bhat
As Jammu & Kashmir and Ladakh High Court gave a landmark judgement with regard to land acquisition for Srinagar Ring Road project , will Government issue a fresh notification for land acquisition under central law in Wathoora village of Budgam district ? This is the question that is revolving round my head for last many days as the High Court division bench order has come at a time when the work on this highway is going on. Another question which comes to my mind is that will the National Highway Authority of India (NHAI) ask the construction company M/S NKC Projects Pvt Ltd to stop the work in Wathoora village as the order from High Court has come in their favour ?
The residents of Wathoora village of Budgam district which is located 12 kms from Srinagar city got a great relief from High Court Division Bench of Chief Justice Pankaj Mittal and Justice Puneet Gupta as they declared that notification issued for land acquisition in 2017 stands lapsed due to efflux of time. The High Court recently quashed the notification issued under the erstwhile J&K Land Acquisition Act in March 2017. The Division Bench of Chief Justice Pankaj Mittal and Justice Puneet Gupta recently in an order said that the declaration under the Section 6 of repealed J&K Land Acquisition Act 1934 (samvat 1990) was made on 08.08.2017, therefore, the award ought to have been made by or before 08.08.2019 i.e within two years, but this was not done. While quashing the initial notification issued under section 4 of repealed J&K Land Acquisition Act 1934 (samvat 1990), the division bench of J&K High Court said:
“From the objections of the respondents, it is evident that no award was made within the above period. The award was made on 11.08.2020 which is certainly beyond the period of two years from the date of declaration and could not have been made as by that time the proceedings have already lapsed ”
The order further reads :
“The writ in the nature of mandamus is issued declaring that land acquisition proceedings pursuant to the notification dated 20.03.2017 issued under Section 4 of the Act stands lapsed under Section 11-B of the Act for want of making an award within a period of two years from the date of declaration. The writ petition is accordingly allowed ”
The case
As I have already explained in my previous articles, the National Highways Authority of India (NHAI) started acquiring around 900 acres of irrigated land in Kashmir valley for the 62 kms Srinagar Semi Ring Road project.
This alternate highway is aimed at decongesting the traffic on Jammu -Srinagar – Baramulla highway (NH44). Out of 900 acres around 600 acres of farm-land is to be acquired in district Budgam alone. The notification for this project under Section 4 of erstwhile J&K Land Acquisition 1934 (samvat 1990) Act was issued on March 20, 2017, for village Wathoora in Budgam. The declaration under Section 6 of the repealed act was made in August 2017. The collector, Ring Road project in Budgam was supposed to finalise the acquisition process and make an award within 2 years i.e before August 2019 as mandated under section 11-B of J&K Land Acquisition Act 1934 (samvat 1990). Pertinently this erstwhile state law of J&K was repealed after article 370 was abrogated and Land Acquisition Rehabilitation & Resettlement Act (LARR Act 2013) was extended to J&K. The collector failed to make an award within 2 years and instead the same was made after more than 3 years . Section 11 B of repealed act says that if collector fails to prepare the award within 2 years from the date of section 6 declaration, a fresh notification has to be issued, but this was not done in the case of the Srinagar Semi Ring Road project.
The Financial Commissioner (Revenue) on 13th August 2020 issued a letter under official communication No: FC -LS/LA-4577/2017 wherein it was conveying to the Divisional Commissioner, Kashmir that rates had been approved for in six villages of Budgam district wherein land would be acquired for the Ring Road project. The approval of rates was granted for the villages Waterwani ,Wathoora, Dharmuna, Gund-e-Kuzwera, Jawaharpora and Ichgam. The rates were approved by the Financial Commissioner Revenue (FCR) who is the “competent authority” as per repealed J&K Land Acquisition Act 1934. This approval was granted after a lapse of more than 3 years and that clearly violated the repealed J&K Land Acquisition Act 1934 (samvat 1990) . This even violates the LARR Act 2013 as well. This law as I already said is applicable in Jammu& Kashmir with effect from October 31st 2019 ( post article 370 abrogation). As the Govt committed this legal fraud several villagers of Budgam went to High Court of Jammu & Kashmir and Ladakh. In its interim order in case of Ali Mohammad Akhoon V/S Govt of Jammu & Kashmir and Abdul Salam Bhat V/S Govt of Jammu & Kashmir High Court had stated the construction work and asked the Govt to issue fresh notification under central law (LARR Act 2013). The order was not respected. Ironically on 11th March 2022 the High Court division bench of Justices A M Magrey and Mohan Lal allowed the Government to proceed ahead with construction work.
While clubbing several petitions of similar nature from Budgam district the High Court division bench of Justice Ali Muhammad Magrey and Justice Mohan Lal said:
“The respondents (government) shall proceed in the construction of ring road by utilizing the land, which will be subject to the decision rendered by this Court”
When this author spoke to the counsel of the petitioners Advocate Shafqat Nazir , he said that order is crystal clear and NHAI plus District Administration must stop the work in Wathoora immediately as the notification has been declared null and void. He said :
“The district administration Budgam misinterpreted the order and started axing trees and destroyed the standing mustard crop in many villages including Wathoora. Hundreds of apple , plum , pear and other fruit and non-fruit bearing trees were uprooted and axed in Wathoora village alone where land owners had not been paid any compensation. Standing mustard crop in the area was buried under clay by huge JCBs and cranes. The order was technically to be applied in such areas where farmers had taken the compensation money , but in case of the petitioners from Wathoora in both Ali Mohammad Akhoon and Abdul Salam Bhat cases, nobody had received a penny and and still their land was forcibly acquired. In one case (Mohammad Ramzan Bhat) the notification for land was not even issued and that patch of land was also forcibly acquired and mustard crop destroyed at BatporaWathoora. This was completely an injustice and wrong interpretation of the order by District Administration Budgam. The construction company have to stop work in Wathoora now as the notification issued in 2017 stands lapsed now”
Conclusion
The Govt needs to implement the high court order soon by issuing fresh notification under LARR Act 2013(central law) which is applicable in J&K from October 31st 2019. This law guarantees fair compensation , rehabilitation and resettlement to affected families. The Financial Commissioner Revenue needs to take a call soon on this issue.
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