1. RAJA SAJJAD AHMED KHAN, J.---The above titled writ petition has been addressed under section 44 of Azad Jammu and Kashmir Interim Constitution, 1974 whereby vires of the impugned Government notification dated 19.02.2015 has been challenged for having been issued as without lawful authority.
2. Brief facts forming background of the instant writ petition are that petitioner is owner of land measuring 105 kanal, khewat Nos.617/610, khata No.3266/3173, situated in village Sahang, Tehsil and District Mirpur. It is averred that the said land including other land total measuring 2705 kanal 3 marlas was notified under section 4 of Land Acquisition Act, 1894, by Collector District Mirpur-respondent No.7 on 13.10.2010, for the purpose of resettlement of extended families, and was acquired through award No.1818/2013 dated 04.09.2013 and amount of compensation of petitioner's land was determined as Rs.4,80,00.000/- and compensation amount of total land Rs. 1,10,21,25,500/- was transferred in the account of respondent No.6 in National Bank on 12.07.2011. It is averred that the acquired land of petitioner was handed over to the Collector in the year 2011 and from that day physical possession of the said land was taken over and petitioner was refrained to use the acquired land. It is further averred that the impugned notification was issued with mala fide intention to prolong the process and to avoid the payment. It is further averred that Collector Land Acquisition/respondent No.6 was duty bound to pay compensation to petitioner and all other land owners, however, he failed to do so. It is stated that on 18.01.2017, petitioner and other land owners applied for the payment of compensation amount from respondent No.6 through application, in the response of the said application petitioner was informed that through a notification No.BOR/1947-57/15, dated 19.02.2015 respondent No.3 suspended the process of payment, hence, this constitution petition.
3. Instant writ petition was admitted for regular hearing on 26.10.2017. Despite service no body appeared on behalf of respondents thus, were proceeded ex parte on 08.02.2018.
4. Written arguments have been filed by both parties.
5. In written arguments, Mr. Masood A. Sheikh the learned counsel for the petitioner reiterated the facts and grounds narrated in the petition and contended that at the time of award dated 04.09.2013, it was the legal duty of the Collector to disburse the compensation amount under section 31 of the said Act and under law he cannot deny to pay the compensation amount in any circumstances, therefore, the impugned notification dated 19.02.2015 to the extent of suspension of the payment of compensation amount is illegal and without lawful authority. Finally, the learned counsel prayed that the impugned notification may be set-aside and respondents may be directed for the payment of the compensation amount forthwith to the petitioner regarding his land awarded along with other amounts provided in the Land Acquisition Act, 1894. He also relied upon the following case law:-
1. PLD 2004 AJ&K 30.
6. Facts of both cases are distinguishable, hence, not applicable to the instant case.
7. On the other hand, Farooq Akbar Kiani, the learned counsel for Collector filed written arguments wherein it is contended that the instant writ petition is not maintainable because the petitioner has challenged the notification dated 19.02.2015 on 4.4.2017 after delay of 2 years, thus, the principle of ladies is applicable in the case of petitioner. He further contended that total amount of compensation had returned back to the account No.101 of the government. The learned counsel further contended that the impugned notification is correct through which the process of compensation was correctly suspended with the condition of approval of PC-1. Finally, the learned counsel craved for dismissal of the writ petition.
8. Waseem Younas, the learned counsel for respondents Nos. 8 and 9 contended that the amount of compensation was deposited into the account of Collector but later on the same was returned back into the account of government.
9. I have considered the written arguments as well as heard the counsel for the parties and gone through the record of the case with due care.
10. A perusal of record reveals that total land measuring 2705 kanal 3 marla situate at village Sahang Tehsil Mirpur was acquired for resettlement of extended families. Notification under section 4 of Land Acquisition Act was issued on 13.09.2010, valuation was determined on 11.11.2011 and award was issued on 04.09.2013. The compensation amount of total awarded land Rs.1102125500/- was transferred in the account of respondent No.6 in National Bank on 12.07.2011, but payment was not made and amount was returned to government treasury in account No.101 on 16.09.2013, 04.03.2014 and 25.03.2014. The petitioner and other land owners time and again approached to the Collector for payment of compensation but finally it was informed by the respondents that through the impugned notification process of acquisition has been suspended till the approval of PC-1 prepared for the development of identified land by the competent forum.
11. The Land Acquisition Act, 1894 and Rules made there under known as AJ&K Land Acquisition Rules, 1994 regulates the procedure of acquiring land, determination of price and payment of compensation, possession and withdrawal of acquisition. Admittedly the land of the petitioner has been acquired compulsorily and according to the contents of writ petition the acquired land was handed over to the Collector in the year 2011 and from that day physical possession of the said land was taken over and petitioner was refrained to use the acquired land.
12. The contents of writ petition have been supported by an affidavit, whereas respondents failed to file written statement and did not controvert the averments made in the writ petition through affidavit. It is settled that if the averments made in the writ petition are not rebutted would be deem as correct. In this respect, reliance can be placed on the case reported as 1993 SCR 88. The relevant caption is as under:- "---Affidavit is considered sufficient in a writ petition prima-facie proof and if not rebutted by cogent evidence becomes conclusive proof."
13. The aforesaid law finds further supports from the case reported as 2008 SCR 590. The relevant extract of the aforementioned verdict is as under:-- "--Petitioner filed an affidavit in support of contents of writ petition---There was no rebuttal of affidavit---Held: it becomes conclusive proof---Fact of ownership proved by defendant---there was no need of further proof. [p.
14. 602] F"
15. Admittedly payment has not been finalized till today and acquisition process has been suspended through the impugned notification for indefinite period. The aforesaid notification is usefully to reproduce herein below:- AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR Board of Revenue, Muzaffarabad "Muzaffarabad" Dated 19/ February/2015 NOTIFICATION No. BOR / 1947-57 / 2015 the President of Azad Jammu and Kashmir has been pleased to accord approval to the decision of the Executive Committee of Resettlement Organization Mangla Dam Raising Project that the acquisition of land for extended families falls under the domain of the Resettlement Organization, however, this process shall be suspended with immediate effect till the approval of the PC-I, prepared for the development of identified land, by the competent forum.
16. (Raja Mumtaz Ahmed) Assistant Secretary (i) Board of Revenue Copy to:-- 1...
17. 2...
18. 3 to...
19. 12.... Assistant Secretary (i)
20. Board of Revenue Section 31 of the Land Acquisition Act clearly shows that after issuance of award under section 11, Collector shall pay the compensation of the awarded land to the land owners. It is usefully to reproduce section 31 of the L.A. Act, which is as under:- "31. Payment of compensation or deposit of same in Court.---(1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next subsection.
(2) If they shall not consent to receive it, or if there be no person competent, to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the. Court to which a reference under section 18 would be submitted: Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount; Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18: Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawful entitled thereto.
(3) ..............
(4) .............."
21. It is also important to mention here that Rules 14 and 15 of AJ&K' Land Acquisition Rules, 1994 postulates that when the land of an owner is acquired for the public purpose and after fulfilling the said purpose some land is left un-utilized the government is at liberty to utilize it for another public purpose and if the other public purpose is not' proved from any scheme approved by the government then the land has to be de-awarded in favour of original owner or disposed of by the Board of Revenue in accordance with government policy. The aforementioned law is further strengthen from the case titled "Ghulam Rasool and another v. Said Ahmed and others" reported as 2012 CLC 1655. The relevant observation is as under:-- "10. The reading of hereinabove, reproduced rules reveals that once the land is acquired by the Government for public purpose or for company or industry it cannot be utilized against the public interest or for the individual's benefit. The first condition is that the acquired lard, can only be used for the purpose is acquired, the land can be acquired under the Land Acquisition Act, whereas there is no provision empowering the Government to acquire land for any individual's personal interest or benefit. The other condition is, that even if the land is acquired for a company, the company cannot sell the same without express approval of the government. This condition also is laid down with spirit that public interest is supreme. The Government will have to watch the interest of public. The third condition is that if at all, the acquired property is not required for the public purpose or for the purpose for which it is acquired, the same shall be resumed and restored to the original owners or their heirs from whom it was acquired and if there is no such eventuality, the land shall be utilized or disposed off by the Board of Revenue, in accordance with the policy of Government regarding disposal of the land. Thus, the scheme and spirit of these rules ultimately also is in consonance of the constitutional provision as expressed under the provision of section 52(A) of the Interim Constitution Act, 1974, which means that without any express and specific legislation no one is empowered to transfer the Government land to any person in an arbitrary manner."
22. In the case in hand, after issuance of notification under section 4 of L. A. Act, neither the land is used for public purpose nor the compensation amount has been paid to the land owners; and nor the same has been reverted to original land owners, rather the acquisition process has been suspended for indefinite period through the impugned notification.
23. A perusal of Land Acquisition Act and rules made there under shows that suspension of acquisition proceedings has not been provided in anywhere. Only section 48 of Land Acquisition Act, give way for withdrawal of acquisition proceedings, but respondents have not made any request to Government for de-notifying the awarded land. The refusal of payment of compensation in the light of impugned notification is not recognized by Land Acquisition Act and rules made there under, as once the notification is issued and department is in possession of the land notified and notification issued by Government is holding the field till date, it does not lie in the mouth of respondent to deny or refuse the compensation to land owner who was dispossessed in pursuance of the notification issued by Collector on the direction of Government.
24. It may be mentioned here that under Articles 4(4), 13 and 14 of the Constitution, 1974, every subject has a right to acquire, hold and dispose off the property and no person shall be deprived from his property, save in accordance with law. No citizen can be, denied or deprive of his property without payment of compensation.
25. Admittedly, petitioner was deprived from his land in year 2013 and compensation of land has not been paid till today, on the ground that till the approval of the PC-I, prepared for the development of identified land, by the competent forum, the compensation process was suspended. Moreover, in the case in hand, due to issuance of impugned notification on one hand land owners were deprived from the compensation of their land whereas on the other hand the affected families have also not been resettled till today.
26. While adverting to the point of laches raised by learned counsel for respondents, it is correct that writ petition can be dismissed on the ground of laches where petitioner remains silent over his rights for considerable period but in the case in hand writ cannot be dismissed merely on the ground of laches because facts and circumstances of the case reveals that petitioner never slept over his rights. In this regard, reliance can be placed on the case reported as 2009 SCR 115. The relevant caption is as under:-- "--- Contention that writ petition was liable to be dismissed on the basis of laches, has no substance---Held: the Court, in exercise of its extraordinary jurisdiction, would normally refuse to aid the stale claims, where claimants remain sleeping over their rights for a great length of time---Laches--- Held: it depends upon the circumstances of each case---the doctrine of laches will not however be applied arbitrarily or capriciously---Delay per se would not normally be a ground for refusal of its aid by the Court---Its application would only be resorted where, in the estimation of Court, it would be unjust to allow the remedy or where by conduct of one party, the other party has been placed in disadvantageous situation.[p. 430] H"
27. The aforesaid laid down law finds further supports from the case reported as 2004 SCR 266. The relevant extract is reproduced here under:- "--- There is no hard and fast rule for applying the doctrine of Laches---Writ can be refused to a person who was not vigilant--- Delay in invoking writ jurisdiction constituting laches depends upon the facts of each case-- -Laches would be attracted only when a party by his conduct waived his right or on account of his negligence the other party would be put in a situation of disadvantage if remedy is allowed at a belated stage. [p.2'73] B."
28. The aforementioned guided principle finds further supports from the case repotted as 1999 MLD 268, wherein the Hon'ble apex Court held that "Mere delay in filing writ petitions did not justify to stay hands from going into merits of petitions and decide the same on merits."
29. The Hon'ble apex Court further held down in a case titled "Khushi Muhammad v. Muhammad Siddique and 5 others reported as 2018 SCR 342. The relevant extract of the said judgment is as under:-- "---An order which has been handed down in total disregard of the mandatory procedure and by offending the principle of natural justice cannot be taken as valid order and the writ petition filed against such an order can be decided on merits by ignoring the question of laches. [p. 348] B."
30. In view of what has been discussed above, the question of laches is not applicable in this case, so the point raised by learned counsel for respondents is hereby turned down.
31. It may be mentioned here that Courts are custodian in such like matters, and when a notification is issued without legal backing, the same must be set-aside. In a case titled "AJ&K Government and 4 others v. Mohi-ud- Din Islamic University and 2 others" reported as 2014 SCR 382, the Hon'ble apex Court held as under?
32. "The Courts being custodian of the fundamental rights of the people should be vigilant not to close their eyes on highhandedness on the part of the Govt. and it is the paramount duty of the departments to work under law and constitution and this Court has every jurisdiction to look into such like matters and pass appropriate orders in this regard."
33. In light of what has been discussed above, the instant writ petition is accepted and notification No.BOR/ 1947- 57/2015 dated 19.02.2015 is hereby set-aside and respondents are directed to pay the compensation amount including 15% CAC, along with the 6% annual interest from the date the amount was transferred in the account of respondent No.6, to the petitioner/land owner, within 2 months, positively.