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2004 DIGILAW 8 (JK)

Kuldeep Singh v. State Of J. &K.

2004-02-05

PERMOD KOHLI

body2004
Petitioners claim to be agriculturists and are residents of Village Kote (Purkhoo), Tehsil Jammu. They are aggrieved of acquisition notice issued under section 4 (1) of the Jammu and Kashmir Land Acquisition Act in respect to land comprising 1109 Kanals 15 Marlas whereby the proceedings for acquisition of the land have been initiated for purposes of establishing a Housing Colony by the Jammu Development Authority. 2. It is the case of the petitioners that the land in question is agricultural land and the State Government has provided irrigation facilities through Ranjan Canal from River Chenab for the irrigation of this land and the adjoining areas. Their main source of livelihood is the land, subject matter of acquisition. It is also stated in the petition that there is non-agricultural land available in the vicinity which can be utilized for the purposes of establishing a Housing Colony. Notice dated 31-1-2001 issued by the Collector, Land Acquisition, Jammu Development Authority as published in a local newspaper, namely, Daily Excelsior has been assailed on variety of grounds viz -- (i) that respondent No.2 though designated as Collector has not been conferred the power of Collector as prescribed under law and is thus incompetent to initiate the acquisition proceedings and issue the impugned notice; (ii) the Jammu Development Authority is not entitled to acquire the land of its own; (iii) the Jammu Development Authority can only make a requisition for acquisition of the land after a Master Plan and Zonal Plan indicating its intention to establish a Housing Colony are prepared and duly approved by the State Government. 3. Respondent No.2 has filed objections to the writ petition refuting the allegations contained in the writ petition. The competence of respondent no.2 to initiate acquisition proceedings is sought to be established on the basis of Government Order No. 959-GAD of 2000 dated 16-8-2000 whereby Brij Mohan Sharma was transferred and posted as Collector, JDA by the Government. The acquisition of the land in question is sought to be justified, same being for public purpose as defined under the provisions of the Land Acquisition Act. 4. Petitioners have also filed a rejoinder reiterating the stand taken in the writ petition while denying the averments made in the objections. 5. I have heard Mr. V.R. Wazir, on behalf of the petitioners and Mr. Abdul Gani on behalf of the respondents. 6. 4. Petitioners have also filed a rejoinder reiterating the stand taken in the writ petition while denying the averments made in the objections. 5. I have heard Mr. V.R. Wazir, on behalf of the petitioners and Mr. Abdul Gani on behalf of the respondents. 6. The Land Acquisition Act 1990 empowers the Collector to initiate proceedings for acquisition and to issue notice under section 4 of the Act. Section 3 (d) defines the expression, "Collector", which means the Collector as defined under the Land Revenue Act 1996. With a view to determine the real definition of Collector. We have to fall back on the definition of "Collector" as prescribed under the Land Revenue Act 1996. Both the parties placed reliance upon section 6 of the Land Revenue Act which defines the Revenue Officers, their classes and powers. For convenience the relevant extracts of the same are re-produced:- "6. Classes of Revenue Officers -- (1) There shall be the following classes of revenue Officers, namely:- (a) the Financial Commissioner. (b) the Divisional Commissioner. (c) the Collector, (d) the Assistant Collector of the first class; (e) the Assistant Collector of the Second Class. (2) The Deputy Commissioner of a District shall be the Collector thereof; and an Assistant Commissioner and a Tehsildar shall be an Assistant Collector of the first class and a Naib Tehsildar an Assistant Collector of the Second Class. (3) Unless the Government issues a notification to the contrary, the jurisdiction of the Financial Commissioner shall extend to the whole of the State and of Divisional Commissioners to the provinces and of Collectors and Assistant Collectors to the Districts and Tehsils respectively in which they are employed. (4) The Government may by notification confer on any person - (a) all or any of the powers of a Financial Commissioner, Divisional Commissioner or Collector under this Act, or (b) all or any of the powers with which an Assistant Collector may be invested there-under; and may by notification withdraw any powers so conferred. (5) A person on whom powers are conferred under sub-section (4) shall exercise these powers within such local limits and in such classes of cases as the Government may direct and, except as other-wise directed by the Government, shall for all purposes connected with the exercise thereof, be declared to be a Financial Commissioner, Divisional Commissioner, Collector or Assistant Collector, as the case may be." 7. Sub Section (1) of Section 6 defines the categories of Revenue Officers. Sub Section (2) prescribed the powers of Collectors and Assistant Collectors conferred upon them by virtue of their office. Similarly, Sub Section (3) defines the jurisdiction of the Revenue Officers and Collector to be exercised while holding their respective posts (office). Sub Section (4) of the afore-said section empowers the Government to confer the powers of Financial Commissioner, Divisional Commissioner or Collector upon any person. Sub Section (5) further empowers the Government to define the jurisdiction of such of the persons upon whom the powers envisaged under sub-section 4 of Section 6 are conferred. Learned counsel for the respondents has vehemently argued that Brij Mohan Sharma having been transferred as Collector, JDA vide Govt Order No. 959-GAD of 2000 dated 16-8-2000 is deemed to be a Collector for purposes of the Land Acquisition Act. 8. A bare perusal of section 6 of the Land Revenue Act, 1996 makes it clear that there are certain classes of Revenue Officers as defined under Sub Section (1). Some of the Officers are entitled to exercise the power of Collector ex-officio, whereas the Government can confer such powers on any person by a necessary notification in this regard. I have perused the Government Order No. 959-GAD of 2000, whereby Brij Mohan Sharma, KAS has been transferred and posted as Collector, JDA. The subject and preface of the afore-said Government order demonstrate that Brij Mohan Sharma has been transferred and posted in the interest of administration. It also appears that there is a post of Revenue Officer in the Jammu Development Authority which is designated as "Collector, Jammu Development Authority". This post is not the one mentioned under subjection (2) of section where a Revenue Officer by virtue of his office is entitled to exercise the powers of Collector. The post is admittedly out-side the cadre as specified under sub-Section (2). Therefore, It becomes necessary for the Government to issue a Notification in terms of sub-section (4) of Section 6 of the Land Revenue Act if it intends to confer powers of Collector upon any such person. Admittedly no specific notification conferring power of Collector upon Brij Mohan Sharma has been issued while posting him as Collector, Jammu Development Authority. Therefore, It becomes necessary for the Government to issue a Notification in terms of sub-section (4) of Section 6 of the Land Revenue Act if it intends to confer powers of Collector upon any such person. Admittedly no specific notification conferring power of Collector upon Brij Mohan Sharma has been issued while posting him as Collector, Jammu Development Authority. Transfer of an Officer in the routine manner to a post, even if designated as Collector in any organization does not ipso facto make him the Collector for purposes of Land Revenue Act or the Land Acquisition Act. The object and purport of sub-section (4) is to specifically confer powers upon a person if not holding a post as specified under sub-section (2). I am unable to accept the arguments of the respondents that Brij Mohan Sharma who issued the impugned Notification under section 4 is empowered to perform the duties and functions of a Collector by virtue of his transfer as Collector JDA vide Govt order No. 959-GAD of 2000 dated 16-8-2000. I therefore, hold that respondent No.2 though designated as Collector was/is not entitled to issue the impugned notice under section 4 (1) of the Land Acquisition Act or exercise the powers of Collector under the provisions of the Land Acquisition Act. 9. The next limb of the argument of Mr. Wazir regarding the authority of the Jammu Development Authority to acquire land of its own be examined. The Jammu Development Authority is creation of Development Act 1970. The Authority is a body corporate with perpetual and common seal created under section 3 of the Development Act 1970 (hereinafter referred to as the Act). Sub-section (2) of Section 3 empowers this Authority to acquire, hold and dispose of the property both moveable and immovable. The authority is governed by the Member appointed under section 4 thereof. Chapter- III of the Act specify the functions of the authority to be performed under the Act, which inter-alia included the preparation of master Plan, Zonal Development Plans for the Development of Local area as may be determined by the Authority. Section 9 of the Act requires every plan prepared by the authority to be approved by the Government. Chapter- III of the Act specify the functions of the authority to be performed under the Act, which inter-alia included the preparation of master Plan, Zonal Development Plans for the Development of Local area as may be determined by the Authority. Section 9 of the Act requires every plan prepared by the authority to be approved by the Government. Section 10 thereof prescribes the mode for preparation and approval of the plan which further require the preparation of a draft plan, its publication and invitation of objections and the suggestion from any person, disposal of such objections and final approval of the plan. Section 13 contained in Chapter V makes it obligatory for every person to seek prior permission from the authority to carry on any developmental activity governed and regulated by any plan prepared and approved by the Government. Chapter VI deals with acquisition and disposal of land. As far as the compulsory acquisition is concerned power to make compulsory acquisition of land required for purposes of development for the purposes of the Act have been retained by the government under section 16 in Chapter VI of the Act. A perusal of this section makes it abundantly clear that it is Government, who has to formulate an opinion for acquisition of the land and acquire the same by compulsory acquisition. It is only after the possession is taken over by the Government, it can transfer the land to the Authority constituted under the Act for purposes of Development on payment of compensation and other charges by the authority. The authority is then entitled to utilize the land for purposes of Development in accordance with section 17 of the Act. As noticed above the development of Housing Colony is one of the functions of the Authority which is admittedly a public purpose as defined under section 3 (g) of the Land Acquisition Act. Though the Jammu Development Authority constituted under section 3 of the Development Act also falls under the expression `local authority as defined under section 3 (i) of the Land Acquisition Act and acquisition of land for purposes of establishing a Housing Colony by such authority is also a public purpose as prescribed under section 3 (g )(vi) of the Land Acquisition Act, but the authority can do so with the prior approval of the Government under the Land Acquisition Act. Similarly for purposes of Development under the provisions of the Development Act the plan, be a Zonal or Master Plan for local area is also required to be approved by the Government. A conjoint reading of the relevant provisions of the Land Acquisition Act and the Development Act as noticed hereinabove would lead to only one inference that when-ever the land is required for purposes of Development which includes establishing a Housing Colony, the prior approval of the Government and/or sanction of the plan has to be given by the Government. 10. It is settled proposition of law that when the law prescribes a particular mode and manner for doing an Act it can be done only in the manner so prescribed.In case Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and others, 2002 (1) SCC 633, the Apex Court held as under: "x x x It is normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. If that be so, since the commission cannot exercise the power of relaxation found in Section 119 (2) (a) in the manner provided therein it cannot invoke that power under section 119 (2) (a) to exercise the same in its judicial proceedings by following a procedure contrary to that provided in sub-section (2) of Section 119". 11. In view of these discussions made hereinabove, I have no doubt in my kind that the acquisition of the land by respondent No.2 is not in accordance with law, be it the provisions of the Development Act and/or the Land Acquisition Act. The existence of public purpose is not disputed. However, the procedure required for compulsory acquisition under the Development Act has not been followed. Respondent No.2 acting on behalf of the Jammu Development Authority had has no authority to initiate the process for compulsory acquisition as it is only the Government which is empowered under law ( Section 16 ) to acquire land for purposes of Development under the Act. This is besides the fact that respondent No.2 has no authority to acquire land as Collector. It will not be out of context to say that the entire proceedings for acquisition of land are without sanction of law. This is besides the fact that respondent No.2 has no authority to acquire land as Collector. It will not be out of context to say that the entire proceedings for acquisition of land are without sanction of law. This petition accordingly succeeds, the impugned notice dated 31-1-2001 issued under section 4 (1) of the Land Acquisition Act is hereby quashed and all subsequent proceedings are declared in-competent and non-est. This however, does not prevent the respondents from initiating proceedings for acquisition of land in accordance with law.