SHAHBAZ Versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR THROUGH CHIEF SECRETARY; MUZAFFARABAD

ORDER

Land measuring 2 Kanals 10 Marlas, comprising Survey No.495‑min, present No.871, situate in Village Samlotha, Tehsil Dadyal, in addition to other land (not in dispute) was acquired by the Collector, Land Acquisition vide Award No.204‑6/89, on January 31, 1989, for the building and playground of Girls Middle School, Samlotha, Tehsil Dadyal. Subsequently, Nazar Hussain, the last owner of the land, alienated the land acquired through the award, alongwith other land, through a registered sale‑deed, executed on July 22, 1990, to the present petitioners and respondent No.4. The petitioners, as alleged in the petition, having no knowledge of the award, constructed a house (3‑storey building) in a portion of survey No.495‑min. The petitioners were given notice in the shape of interim injunction by the Tehsildar (Assistant Collector) Dadyal, on November 12, 1991, whereby the petitioners were directed to refrain from raising construction in the acquired land and interfering in possession of the School authorities. On receipt of the notice, the petitioners invoked the jurisdiction of this Court through the writ petition and prayed that in exercise of special jurisdiction, the award of the Collector may be declared ineffective on the rights of the petitioners for its being null and void and inoperative.

2. It was explained that the petitioners having no knowledge of the award, constructed a big house by incurring expenditure in the sum of Rs.20,00,000. In case the award was not cancelled, the petitioners would suffer irreparable loss. The School premises and use of the land as playground would disturb the privacy and purdah of the petitioners. It shall create an obstruction in the path of the petitioners which leads to their ancestral graveyard. There being no alternate passage to the graveyard, the petitioners would face great hardship. The respondents in their written statement, repudiated the claim of the petitioners and averred that the writ petition was liable to dismissal on the grounds of (i) laches; (ii) petitioners being not aggrieved persons and (iii) availability of alternate remedy.

On merits, it was averred that the statement of facts made in the petition, was correct to the extent of acquisition of land through an award and construction of the house. Nevertheless, it was pleaded that the petitioners had the knowledge of the award of the land and despite that, they raised construction without permission of the School authorities and the Government. The claim was repudiated and it was prayed that the petition may he dismissed.

3. Mr. Masud Khalid, the learned Counsel for the petitioners contended that this Court was competent to examine the award and declare it invalid and inoperative on the rights of the petitioners. Reference was made to Sohail Akhtar's case (1987 SCMR 1534). Mr. Muhammad Akram Mughal, the learned Additional Advocate‑General controverted the aforesaid points and argued that the award was final. It could be challenged through reference and not otherwise. As no reference was made in time, the petitioners could not invoke special jurisdiction of this Court, to seek nullity of the award.

4. The term "award" has not been declined in the statute. Section 11 of the Land Acquisition Act (hereinafter referred as the Act) postulates that the Collector after making inquiry into the objections of interested persons, in pursuance of notice under section 9 of the Act, in respect of: (i) measurement of the property, (ii) value of the land, and (iii) apportionment of the compensation among the interested persons, shall sign the award and in compliance with the provisions of section 12, file it before the Collector. Thus on fulfilment of conditions postulated under sections 11 and 12 the action oft the Collector assumed the shape of an award in the eye of law. An award A becomes final when it is filed in the office of the Collector. It is also enjoined upon the Collector to give notice of the award to interested persons irrespective of the fact such persons were personally present or were represented by their authorised agent when the award was made. The remedies against an award when it is not accepted, lie under sections 18 and 30 of the Act. Section 18 provides that an interested person when does not accept and award with respect to: (i) measurement of the land, (ii) amount of compensation, or (iii) apportionment of compensation, he may move and application to the Collector requiring him that matter may be referred for the determination of the Court. Section 30 of the Act provides a remedy by reference in respect of apportionment of the compensation. Thus, an award of the Collector attains Finality unless it is modified, reversed or annulled by the Court in a reference or appeal, as the case may be.

5. In the present case, it is noticed that the award of the Collector was not challenged by reference by the last owner of the property who had the interest, in one of the aforesaid specific manners. Thus, the award became final. The present petitioners entered into scene after lapse of 1‑1/2 years by securing sale‑deed in their favour. The award, as mentioned earlier, was made on January 31, 1989 and the sale‑deed was executed on July .22, 1990. The petitioners, having acquired interest at late stage, were, undoubtedly, unable to challenge the validity of the award through a reference but that by no stretch of imagination, enables them to challenge the validity of the award at late stage when the award has already become final in the eye of law.

6. It appears from the copy of the interim injunction issued by the Assistant Collector Ist Class, Dadyal, in the name of the petitioners that the School authorities had already assumed the possession of the acquired land, in due course of time. The learned Counsel for the petitioners explained that the petitioners constructed their house over the site which was beyond the boundaries of the acquired land but part of the courtyard extended to the acquired area. It was explained that there were some private negotiations. Certain offers and proposals for adjustment were made but such offers were not conducive to the convenience of the petitioners. Be that as it may, the fact remains that Survey No.495‑min, present No.871, was 4 kanals 11 marlas. Out of this area, 2 kanals 10 marlas was acquired for the Girls Middle School. Two kanals one marla was still available to the petitioners and that could be utilized by them for residential or agricultural purposes. The factual aspect of the case; therefore, does not suggest any inconvenience, hardship or difficulty to the petitioners in utilisation of their house or living therein. Therefore, there was no evidence to hold that by denial of the requisite relief to the petitioners, they were likely to suffer any hardship and inconvenience in their living in the house in question.

7. The petitioners advanced their claim to use the acquired piece of land for their residential purposes, on the basis of the sale‑deed referred to above. No doubt, the sale‑decd was acquired by the petitioners from Nazar Hussain, the last owner of the property in dispute, but that by itself was no legal ground to annul the award. It is undenied that on completion of acquisition proceedings, and accomplishment of the finality of award, the last owner of the property was divested of his interest and title in the land. He was eligible to receive the compensation as awarded by the Collector. On this premises, it is safe to hold that when the award of the Collector attained finality as it was not challenged through a reference permissible under sections 18 and 30 of the Act, the vendor of the property lost his title and interest in the land and thereafter, he was not empowered to transfer the land to the petitioners. The sale‑deed executed by a vendor who was legally incompetent to execute the sale‑deed at the relevant time, does not confer any title on the vendees. Section 7 of the Transfer of Property Act empowers such person to execute sale‑deed who was competent to contract and entitled to transfer the property in his own right, or as an authorised person. In the present case, as the vendor was not competent to transfer the acquired land, the sale‑deed executed by an incompetent person conferred no interest and title on the petitioners in respect of the land in question. Thus, strictly speaking, they were not aggrieved person, so as to invoke the special jurisdiction of this Court.

8. Section 4(14)(3)(e) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, postulates that nothing shall affect the validity of any law providing for the acquisition of any class of property for the purpose of:

(i) providing education and medical aid to all or any specified class of State Subjects;

The land in dispute was acquired for quite a valid purpose, fully protected by, the provisions of Azad Jammu and Kashmir Interim Constitution Act. Thus, the land acquired for a valid public purpose like the construction of Girls Middle School and its playground, was not violative of or in conflict with the provisions of the Interim Constitution Act.

9. Another relevant aspect of the proposition may be that an acquired land when no longer is required for the stipulated purposes, it may be disposed of by its return to the petitioners who arc successors‑in‑interest of the last owner of the land. The Land Acquisition Act provides no specific scheme or formula for the disposal of the land when it was not required for the stipulated public purpose. Nevertheless, in such situation, it was desirable that it should be restored to the last owner either on payment of price assessed as compensation at the time of award or its market value or by an open auction; as it may be deemed expedient. In such respect, the discretion vested in the School authorities or Education Department or Ministry of Education or the Government, to come to the rescue of the petitioners by restoring necessary portion of the land to them to enable them to utilise their house, without .any hardship or inconvenience. As the discretion primarily vested in the authorities mentioned above, this Court was not allowed to usurp the discretion of such authorities, by granting any relief in the case.

10. It was argued that*Nazar Hussain, the vendor has not received the compensation of the land by this time. Therefore, suggestion was made that on account of refusal to accept the compensation, the award may be annulled. The, legal aspect of the award has already been analysed elsewhere. The law does not contemplate an exception to invalidate an award on account of refusal oft the owner of the property or interested persons to receive the compensation. Irrespective of the fact that there is no evidence on record to believe that: compensation has not been received by the owner of the property, the fact remains that law does not conceive such an eventuality to annul the award only that account

11. The authority cited by the learned Counsel for the petitioners, in support of the respective contention, is of no help to him as the proposition of law in that case was altogether different. There is no cavil with the view of the Supreme Court in the light of the facts of that case. No other point was canvassed in support of the petition.

12. The petition merits no consideration. It is, therefore, dismissed. No order as to costs.

A.A./520/H.C.A Petition dismissed.