Partly allowed

Dina Nath and Ors. v. Union Territory of J and K Th Chief Secy and Ors.

J&K HC14 Feb 2023WP(C)/50/2021

Case brief

AI extract

What is this about?

Petitioners sought compensation for land and trees damaged during road realignment. The court directed immediate payment for tree damage as assessed by horticulture and forest departments, and ordered a fresh joint assessment for land damage within eight weeks.

What did the court decide?

Compensation for trees (Rs. 12,03,690/- and Rs. 1,95,733/-) to be disbursed immediately; fresh assessment for land damage to be completed within eight weeks with fund release thereafter.

Dina Nath and Ors. Vs Union Territory of J and K Th Chief… — Landlord and Tenant | J&K HC (2023)

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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Reserved on : 10.10.2022 Pronounced on : 14^th .02.2023

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WP(C) No. 50/2021 CM No. 277/2021

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Dina Nath and others

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.....Appellant/Petitioner(s)

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Through :- Mr. B. S. Bali, Advocate

v/s

UT of J&K and others

.....Respondent(s)

Through :- Mr. S.S. Nanda, Sr. AAG Mr. Ravinder Gupta, AAG

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

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JUDGMENT

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Per: Sindhu Sharma-J

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Petitioners have preferred the present petition seeking a direction to respondent Nos. 1 & 2 to provide/release funds amounting to the tune of Rs. 97,26,952/- at the disposal of respondent Nos. 3 & 6 for further disbursement of the same in favour of the petitioners/land owners as compensation on account of damage caused to their land as well as fruit and non-fruit trees due to construction and change in alignment of the road from Kunfer Nallah to Sarthi Sawni Village in Tehsil & District Ramban as per their shares within a time bound period.

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The petitioners are the co-sharers/joint holders of land in Khasra Nos. 933 measuring 02 Kanal and 08 Marlas, 935 measuring 12 Marlas, 936 measuring 12 Marlas, 941 measuring 02 Kanal and 11 Marlas, 942 measuring 02 Kanal and 01 Marla, 943 measuring 04 Kanal and 06 Marlas, 944 measuring 06 Kanal and 13 Marlas and Khasra No. 945 measuring 02 Kanal and 12

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Marlas, total land comprising about 21 Kanals and 16 Marlas in Village Sarthi Sawni, Tehsil and District Ramban. According to the petitioners, in the aforesaid land, there were number of fruit and non-fruit bearing trees.

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The respondents started construction of road from Kunfer Nallah to Sarthi Swai Village in Tehsil and District Ramban and started construction of the road. The acquisition proceedings of land measuring 67 Kanals and 5 Marlas for construction of Kunfer Nallah to Sarthi Sawni Road were initiated by the Collector Land Acquisition (ACR), Ramban on the indent placed by the Executive Engineer PWD (R&B) Division Ramban vide Communication No.7868-72 dated 14.10.2021. As some dispute arose beyond KM^2nd RD 250 to KM^2nd RD 850, the road was re-aligned to avoid the disputed portion. Land measuring 17 Kanals and 8 Marlas out of the original re-alignment of the road was also de-notified on 05.06.2011. Meanwhile, the acquisition proceedings lapsed on 26.09.2012, in view of the mandate of Section 11-B of the J&K Land Acquisition Act.

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The petitioners claimed that the change of alignment of road had resulted in damage to their property, i.e., including both fruit and non-fruit bearing trees. They, therefore, sought compensation for damage caused to their land/fruit and non-fruit bearing trees, though repeated requests in this regard were made, but to no avail. This constrained the petitioners to seek compensation for the damage caused to their land by filing a writ petition bearing OWP No. 913/2016. This petition was disposed of vide order dated 09.06.2016 directing respondent No. 2-Deputy Commissioner, Ramban to consider the claim of the petitioners as projected in the writ petition and pass consideration order within a period of eight weeks from the date of issuance of the said order.

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In compliance to the judgment dated 09.06.2016, the Collector Land Acquisition (ACR) Ramban issued a communication dated 28.07.2017 directing the Executive Engineer PWD (R&B), Ramban to assess and calculate the damage and submit the same along with the funds to the office to redress the grievances of the land owners. The Executive Engineer PWD (R&B), Ramban admitted that the damages have occurred due to construction of road and also that the land was completely damaged and developed major and minor cracks and slopes by earth cutting. The relevant portion of communication dated 06.11.2018 reads as under:-

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“…the damage file has been authenticated by his office because the land of the land owner was earlier acquired for construction of road in question for which the formal indent for acquisition proceedings stands already placed to your Collectorate vide this office letter No. 7868-72 dated 14.10.2011 later on the portion of road from km 2^nd RD 250-850 was left over as per the onspot direction the then District Development Commissioner Ramban and an alternate was fixed. The land from RD-250 to onward was completely damaged by way of earth work cutting by engaging heavy excavators which is not fit for any type of Agriculture activity. It is further submitted that as per your letter No. Acq/Gen/17/502-05 dated 19.08.2017, a fresh indent was also placed to the Chief Engineer PWD (R&B) Department, Jammu for its further transmission to District Collector Ramban with a copy to worthy District Deveopment Commissioner Ramban and your good office also among toher. As regards for assessment of the damages occurred due to construction of road, the land was completely damaged and develop major/minor cracks and slopes by earth cutting.”

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The Collector Land Acquisition (ACR), Ramban vide its communication dated 14.11.2018 to the Executive Engineer PWD (R&B), Ramban has held as under:

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“The cost of land/fruit/non-fruit bearing trees damaged due to construction of road from Kunfer Nallah to Sawni Village was to the tune of Rs. 97,26,952/- as per the 2018-19 stamp duty/rates.”

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However, after assessment of the compensation, the Collector Land Acquisition (ACR), Ramban requested Executive Engineer to deposit the requisite amount which was payable to the concerned land owners vide communication dated 14.11.2018. Subsequently, vide communication dated 22.11.2018, the Executive Engineer PWD (R&B) requested the District Superintendent Engineer PWD (R&B), Ramban for arranging the requisite funds for deposit of the same with the Collectorate as per assessment for disbursement of the original claim. The Superintendent Engineer PWD (R&B), Ramban,

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further vide Communication dated 21.02.2019 again requested Chief Engineer PWD (R&B) Department for arranging the funds with regard to the same.

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The grievance of the petitioners is that though the respondents have admitted that the property of the petitioners, i.e., land and fruit/non-fruit bearing trees in various Khasra numbers has been damaged by PWD Department due to construction of road and change of alignment from Kunfer Nallah to Sarthi Sawni Village in District Ramban. The competent Revenue Authority, i.e., Collector Land Acquisition had assessed the damage and calculated the same to the tune of Rs. 97,26,952/- as per communication dated 14.11.2018, but this amount was not disbursed to the petitioners as per their entitlement despite repeated requests.

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Since the damage to the property of the petitioners due to construction of the road stands admitted by the respondents, therefore, they were entitled to damages caused to their property as calculated and assessed by the respondents. It is submitted by the petitioners that they have been deprived

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of the use of their property due to the damage caused to the same by the respondents. The trees on their land were also destroyed and the land is now of no use to them. The petitioners, as such, claim compensation for the loss suffered by them as assessed by the competent authority. They, thus, seek a direction to the respondent Nos. 1 and 2 for releasing of funds to the tune of Rs. 97,26,952/- which are to be placed on disposal of respondent No. 3 to 6 in a time-bound manner so that the same may be disbursed in their favour.

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Mr. S. S. Nanda, learned Sr. AAG appearing on behalf of respondent Nos. 3 and 4 has admitted that the respondents-Collector Land Acquisition, Ramban has prepared a case file for the damaged land of the petitioners by the user agency and submitted the same to the Office of Executive Engineer PWD (R&B), Division Ramban to authenticate and assess the damages and

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also release the payment of damages vide its communications dated 25.10.2018 and 06.11.2018.

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It is further submitted by the respondents that an indent was placed by the Executive Engineer for realigning of portion of land. Subsequently, the land measuring 17 Kanals and 8 Marlas out of the original alignment of the said road was de-notified by the Collector vide order dated 05.06.2014. The Collector again requested Executive Engineer, PWD (R&B), Ramban on 01.11.2018 to assess the damages or to place fresh indent along with sufficient funds and again vide communication dated 14.11.2018, the Executive Engineer, PWD (R&B), Ramban was requested to release the amount of Rs. 97,26,952/- as cost of damages occurred to the land of the petitioners along with damage to the fruit and non-fruit bearing trees.

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Respondent Nos. 2 and 5, i.e., PWD Department, the indenting department, in their reply have, however, denied the claim of the petitioners.

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It is submitted that the petitioners are claiming damages of the land pursuant to the cost of land worked out by the Revenue Agency prior to the de-notification of the proceedings, but damage to the extent of fruit and non fruit bearing trees is admitted by them. It is also submitted that the Revenue Department has worked out the cost of the land prior to de-notification in the year 2014 as damages to the land.

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According to Mr. Ravinder Gupta, learned AAG, the ownership of the land remains with the petitioners and the Collector Land Acquisition (ACR) Ramban had submitted the cost of the land which was worked out as per the tentative cost in acquisition proceedings as damages of the land which is not admissible as no fresh process has been initiated jointly by the revenue department and PWD Department to work out the damages in question. 13. The admitted case of the parties is that the notification under Section 4 of the Jammu and Kashmir Land Acquisition Act was issued regarding the acquisition of land for construction of road from Kunfer Nallah to Sarthi Sawni village and during the construction activity, it was further admitted that the earthwork for the said land was being done when change of alignment was proposed and carried out by the respondents, who had placed a fresh indent with regard to the new alignment. The construction of the aforesaid land of the petitioners had already progressed and earthwork was carried on as admitted by the respondents. The Executive Engineer PWD (R&B) Ramban vide his communication way back in 06.11.2018 has held that the land was completely damaged and developed minor and major cracks and slopes by earth cutting and also there was damage to the fruit and non-fruit bearing trees. Thus, the Executive Engineer has admitted that the damage caused to the land of the petitioners was due to construction of road from Kunfer Nallah

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to Sarthi Sawni village. This apart, all the fruit and non-fruit bearing trees had also been damaged and destroyed and the assessment of the loss of trees were undertaken as per the Horticulture Department and the Forest Department. 14. The Chief Horticulture Officer, Ramban has assessed the damage of fruit bearing trees as Rs. 12,03,690/- vide his communication dated 03.08.2013 addressed to the Collector Land Acquisition Ramban. The Divisional Forest Officer, in response to the communication dated 02.04.2013, has also assessed the amount of non-fruit bearing trees to the extent of Rs. 1,95,733/. Both these assessments have been admitted by the respondents, i.e., Collector (ACR) and also in para-5 of the objections filed by respondent Nos. 2, 3 & 6. Therefore, there being no dispute regarding the assessment in respect

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of fruit and non-fruit bearing trees, the same is required to be disbursed to the petitioners as per their entitlement at the earliest.

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So far as the damage caused to the land of the petitioners is concerned, which has been assessed at Rs. 97,26,952/-, the same is disputed by the respondent Nos. 2 and 5. The respondent Nos. 2 and 5 submit that the damage report, as submitted, has to be worked out afresh jointly by the team comprising of the officials of Revenue Department and the PWD Department as the assessment of compensation has been worked out prior to the de-notification in the year 2014 and, as such, this assessment has been denied. The assessment made by the Collector is also approximate as per stamp duty rates of 2018 and 2019, which is not applicable. 16. The damage caused to the land stands admitted by all respondents, as no joint fresh process after the judgment dated 09.06.2016 was undertaken by the department. The Executive Engineer PWD (R&B) Ramban in his communication dated 06.11.2018 had held that land was completely

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damaged by way of earthwork cutting, by engaging heaving excavators and is not fit for any type of agricultural activity. It is only the assessment made by the Collector which is being questioned by them. The petitioners have waited for a long time to seek compensation due to them for the damage caused to their land, which too stands admitted by the respondents.

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In these facts and circumstances, we deem it appropriate to dispose of this petition by directing the respondents to release the compensation for fruit bearing trees and non-fruit bearing trees amounting to Rs. 12,03,690/and Rs. 1,95,733/- as already assessed by the Chief Horticulture Officer and by the Divisional Forest Officer. Further, the Collector Land Acquisition, Ramban is directed to make the assessment of damage caused to the land of

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the petitioners afresh after issuing notice and associating all the concerned parties within a period of eight weeks. After the completion of the assessment, the amount, if any, assessed in favour of the petitioners that may be released within a period of eight weeks thereafter. In case, any party is aggrieved of the assessment to be made, would be at liberty to avail the appropriate remedy under law.

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Disposed of in the aforesaid terms.

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(SINDHU SHARMA) (TASHI RABSTAN) JUDGE JUDGE

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JAMMU 14.02.2023 Michal Sharma

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Whether the judgment is speaking : Yes
Whether the judgment is reportable : Yes

Dina Nath and Ors. v. Union Territory of J and K Th Chief Secy and Ors.

Case brief

What is this about?

What did the court decide?

Dina Nath and Ors. v. Union Territory of J and K Th Chief Secy and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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