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2005 DIGILAW 72 (JK)

Bashir Ahmad Darzi v. State

2005-03-23

NISAR AHMAD KAKRU

body2005
1. A short but an important question that has arisen in this writ petition may be summarized. Whether Deputy Commissioner (DC for short) can exercise powers of the Government in the capacity of District Development Commissioner? 2. The controversial issue owes its origin to letter No DCB/LA/BLA/409-11 dated 27-01-2003, addressed by the DC Baramulla to the Collector, Assistant Commissioner (R) Baramulla requiring the latter to acquire the land measuring 2 kanals and 6 marlas bearing Khasra Nos. 155, 156 & 157 for construction of a Shopping Complex at Ushkoora Baramula. Pursuant thereto, the Collector, Assistant Commissioner, Land Acquisition issued a notification vide No. DCB/LA/BLA/155 dated 27-01-2003 in exercise of powers under section 4 of J&K Land Acquisition Act Samvat 1990 (1934 A.D.). Both letter as also the notification are impugned through this writ petition inter alia on the ground that the DC is not possessed of the power in terms of section 60 of the Jammu & Kashmir Town Area Act 2011 which reads: "60. Acquisition of land. -- When any land whether within or without the limit of a town area is required for the purposes of this Act, the Government may, at the request of the Town Area Committee proceed to acquire it under the provisions of the Land Acquisition Act, 1990 and on payment by the Committee of the compensation awarded under that Act and of any other charges incurred in acquiring the land, the land shall vest in the Committee." 3. It transpires form the above said provision of law that it is the Government which is empowered by the statute to acquire the land at the instance of Town Area Committee. Admittedly, in the case on hand, acquisition has been ordered by the DC. Law is settled that when mode and manner of performing an official act is prescribed by the statute, it has to be performed in that manner alone or not at all. Here is a case where power vests in the Government by dint of mandate of section 60 of the Jammu & Kashmir Town Area Act 2011 to go for acquisition for public purpose yet power is assumed by the DC unto himself notwithstanding the fact that it does not flow to him from the statute. That being so, communication of the DC conferring power upon the Collector, Assistant Commissioner is, ex facie, in contravention of the statute and cannot sustain. That being so, communication of the DC conferring power upon the Collector, Assistant Commissioner is, ex facie, in contravention of the statute and cannot sustain. 4. In the aforementioned background, writ petition succeeds. Communication of the DC bearing No. DCB/LA/BLA/409-11 dated 27-01-2003 and the consequent notification bearing No. DCB/LA/BLA/155 dated 27-01-2003 are quashed. No order as to costs.