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2001 DIGILAW 74 (JK)

Kanwar Kisher Dhar v. State

2001-03-30

T.S.DOABIA

body2001
1. The acquisition proceedings taken under the Jammu and Kashmir Land Acquisition Act, are the subject matter of challenge in these two writ petitions. Therefore, this order shall govern the disposal of both these petitions. 2. The facts be noticed in each one of them. Writ Petition 706/96: 3. The petitioners submit that they are the landholders in Mouza Barzulla, Srinagar. The land owned by them has been described in para 3 of the writ petition. The manner in which the land is owned by each of the petitioners has been detailed in para 4 of the petition. Petitioners submit that on account of law and order situated in the valley, they migrated to Jammu. The District of Srinagar where the land is situated, came to be described as a disturbed area und the Jammu and Kashmir Disturbed Areas Act of 1990. In their absence, it is stated, a notification was issued under Section 4(1) of the Act referred to above. This notification came to be issued on 30th March 94. A further notification under Section 6 of the said Act came to be issued on 26th June 95. Declaration in terms of section 17 was also made. It is these proceedings which are subject matter of challenge. The challenge is made interalia on the following grounds: i) That the description of land as given in section 4 does not in any way identify the land which is to be acquired. Mere mentioning of Khasra Nos. and their Min Nos., it is stated would not be sufficient compliance of law. What is sought to be urged is that unless and until the notifications makes it apparent as to which part of the land is to be acquired, the notification under section 4 cannot be sustained; ii) That in case, the notification under section 4 is bad, then the further steps taken under section 6 and other provisions of the Act, would also be bad. A vague notification as per the petitioners cannot take away rights of the petitioners. By referring to Section 6(2) of the Act, it is submitted that the declaration is to the punished in an official gazette and shall slat the District or other territorial divisions in which the land is situated. This having not been done, the further recourse to section 9 and 17 is said to be had. By referring to Section 6(2) of the Act, it is submitted that the declaration is to the punished in an official gazette and shall slat the District or other territorial divisions in which the land is situated. This having not been done, the further recourse to section 9 and 17 is said to be had. The land falling in an area which was declared as disturbed area is also pressed in aid for seeking setting aside of the proceedings. Respondent have filed objections. 4. The assertion that the notification is vague is denied. It is submitted that since main khasra No. is described, therefore, the Min Nos. would be presumed to be part of it. It is submitted that one kanal 90 ft. of the land is being acquired for a public purpose namely Bone and Joint Hospital. 5. The further fact is that on 14th, August 96, when the writ petition came up for motion hearing, the parties were directed to maintain status-qua and this order has continued to exist. To summarize, the acquisition proceedings are being challenged on the grounds: i) That the notifications were not published in gazette; ii) That the place at which the concerned land is situated was also not made public; iii) That even where urgency provisions are invoked even then the requirement of law is that publication in terms of Sections 4 and 6 of the Act should be made. 6. The fact in OWP 774/90 be now examined. The challenge in this writ petition is made to acquisition proceedings initiated by issuing a notification under Section 4 of Act of 1990. The particulars of land are as under: Location Khasra No. Kl. Mrs. Sarsaies ViII. Poonch 1402 0 -04 0 Teh. Haveli 1403 0 -00 08 Distt. Poonch 1467 min 5 -07 08 1468 min 3 -08 03 1453 min 0 -02 02 7. It is seen that so far as Khasra No. 1467 and 1468 are concerned, qua these Khasra Nos. the proceedings have been held to be bad for the reasons given in OWP No. 239/97. With regard to the rest of the land, the arguments which have been advanced are the same as have been advanced in the case of OWP 706/96, noticed 8. the proceedings have been held to be bad for the reasons given in OWP No. 239/97. With regard to the rest of the land, the arguments which have been advanced are the same as have been advanced in the case of OWP 706/96, noticed 8. The learned counsel for the petitioner has placed reliance on a decision of this Court reported as 1983 Kashmir Law Journal 122, Shir Omkar Nath Khashoo Vs. State of J&K and Ors. In this case, it has been held that failure on the part of the Land Acquisition Collector to comply with the provisions of the Land Acquisition Act would render all proceedings taken subsequent to notification under Section 4 without jurisdiction. For the same proposition, reliance is being placed on a decision report as AIR 1970 SC 802, Smt Gunwant Kour and others Vs. Municipal Committee, Bhatinda and Ors. wherein the Supreme Court of India has observed that the jurisdiction of the Collector depends upon issuance of a valid notification and the mere fact that the Collector i$ satisfied that the area of the land demarcated corresponds to the area notified would not prevent the owners from contending that they were not given effective opportunity to make representation. Reference is again being made to another decision of the Supreme Court reported as AIR 1985 SC 1622. The Collector (District Magistrate) Allahabad and another Vs. Raja Ram Jaiswal. In this case, the view expressed by the Supreme Court was that a notification stating therein that the land which is pledged or is likely to be needed for a public purpose, has to be published in the official gazette. In this regard, the decision of the Supreme Court reported as Narenderjit Singh Vs. State of U.P. (1970) 1 SCC 125, be taken note of. In the above case, it has been held that the provisions of section 4 (1) of the Land Acquisition Act are mandatory. It was observed that unless and until a notice is given in accordance with the provisions contained therein, the entire acquisition proceedings would be deemed to have been vitiated. The act that urgency provisions are invoked would not, in any way, lessen the responsibility of the State to comply with the provisions of Section 4 if the Act referred to above. The act that urgency provisions are invoked would not, in any way, lessen the responsibility of the State to comply with the provisions of Section 4 if the Act referred to above. In the above case, reliance was placed on a decision of the Supreme Court reported as AIR 1967 SC Khub Chand Vs. State of Rajasthan. In Khub Chands case, the Supreme Court pointed out that the object of the Act is to intimate a person whose land is sought o be acquired so that the officers of the State may enter upon the land. The requirement to comply with the provisions of section 4 was held to be mandatory. As indicated above, this is supposed to be complied with even where urgency provisions are invoked. With regard to the vague nature of notification i.e. when Khasra Nos. are only given, all that is required to be said is that mere giving of Khasra Nos. without any further description would not be sufficient compliance of law. In the case of Madhya Pradesh Housing Board Vs. Mohd Shafi, (1992) 2 SCC 168, where the notification was issued describing the area as "Mandsaur", without giving any description which may be utilized for identifying the land, it was concluded that the notification is bad. What was said in paragraph 12 of the judgment is being reproduced below: "The description of the land in the notification issued under section 4(1) and 17(1), in our opinion, is very cryptic. Not only no Khasra Numbers have been given, even the precise "locality" has not been indicated. Mere mention of Mandsaur, which is spread over an area of 25 sq. Kms. and is divided into various municipal wards, against the "locality" is wholly insufficient description and the respondent or anyone also could not have come to know from that description whether 2, 298 hectares of land which was required for acquisition included the land belonging to him or not. The non-disclosure of the "locality" with precision, invalidates the notification and renders the publication of notice a meaningless formality." In the case referred to above, the Supreme Court or India took note of an earlier decision given in the case of Narenderjit Singh (supra). In view of the legal position noticed above, the notification whereby no detailed description of the land is given, is held to be vague and liable to be quashed. In view of the legal position noticed above, the notification whereby no detailed description of the land is given, is held to be vague and liable to be quashed. The writ petitions are allowed and the notifications impugned are accordingly quashed. Disposed of in the manner indicated above.