Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 39 (JK)

Ali Mohd. Najar v. State

2010-02-03

MOHAMMAD YAQOOB MIR

body2010
1. In the newly created. District Headquarter at Shopian, for construction of Mini Secretariat, land was required to be acquired. In this connection indenting department (Revenue) through Chief Planning Officer, Shopian (hereinafter referred as CPO) vide letter dated 14.8.2007 addressed to Collector Land Acquisition (Assistant Commissioner, Revenue) Shopian forwarded the indent for acquisition of land measuring 55 kanals and 11 marlas situated at village Gagran Shopian. Same was notified in terms of Section 4 of the Land Acquisition Act (hereinafter referred to as "the Act"). Subsequently one more indent was sent by the said CPO for acquiring additional land measuring 34 kanals 14 malras as is clear from the letter dated 29.9.2007 addressed to Collector, consequently one more notification under Section 4(1) of the Act under the head corrigendum has been issued by the Collector on 4.10.2007. Objections seem to have been filed by the land owners. In the meantime said CPO vide his letter dated 3.11.2007 addressed to the Collector conveyed that in view of the decision taken on spot on 25.10.2007, the identified land measuring 47-50 kanals situated at Batapora Shopian Bye-pass Road be acquired for the construction of Mini Secretariat. Collector has also been requested to de-notify the land notified vide notification dated 18.8.2007 and 4.10.2007. The de-notification of the said land by the Collector is reflected in the records. 2. After de-notification, the CPO has again along with letter dated 14.11.2007 enclosed indent for acquisition of land measuring 69 kanals 16 marlas and 3 sirsais. Collector in turn has issued the notification under Section 4 dated 13.11.2007 for acquisition of land measuring 47 kanals 15 marlas and 14 sirsais situated at Batapora Shopian. 3. Then again the CPO vide his letter dated 15.11.2007 has enclosed an indent for acquisition of land measuring 22 kanal and 8 sirais situated at village Batapora. As a result thereof, one more notification under Section 4 is shown to have been issued by the Collector on 23.11.2007. 4. On the basis of proceedings so initiated as detailed above, the Government vide notification No.91-RD of 2008 has issued declaration under Section 6 of the Act to the effect that the land as mentioned in the said notification measuring 69 kanals 16 marlas and 3 sirsais is needed for public purpose. 4. On the basis of proceedings so initiated as detailed above, the Government vide notification No.91-RD of 2008 has issued declaration under Section 6 of the Act to the effect that the land as mentioned in the said notification measuring 69 kanals 16 marlas and 3 sirsais is needed for public purpose. The Collector has been directed to take order for acquisition and to take possession in pursuance of Section 17 of the Act and to complete all the formalities of Section 9(2) and 17-A of the Act and Rule 63 of the Land Acquisition Rules. 5. On the basis of said notification issued by the Government, the Collector on 73.2008 has issued notification under Section 9 and 9-A of the Act and has shown to have issued notice to the interested persons and the indenting department regarding taking over possession of the land measuring 46 kanals 13 marlas and 4= sirsais. 6. It appears that the land owners as well as Traders Federation, Shopian have objected to the acquisition. In the process the instant writ petition has been filed praying therein that the notification dated 23.11.2007 issued by respondent No.4 (Collector) may be quashed, furthermore for issuance of prohibitory orders so as to prevent the respondents from acquiring land of the petitioner covered by survey Nos.359-min, 372-min, 373-min, 374-min, 375-min, 384-min, 390-min, 151-min, 152-min and 154-min situated at village Batapora Shopian for construction of the Mini Secretariat, furthermore for issuance of command to the effect that the construction of Mini Secretariat shall be raised at village Gagran on the land in respect of which earlier notification had been issued by the Collector. 7. Learned counsel for the petitioners first contended that entire acquisition proceedings are without jurisdiction as the Assistant Commissioner Revenue is not the Collector. In this connection he has referred to Section 3(d) of the Act and Section 6(1)(c) of the Land Revenue Act. 8. In opposition learned State counsel contended that the Assistant Commission is a Collector as he has been invested with the powers as is clear from the notification SRO 213. 9. In this connection it shall be advantageous to notice the relevant provision i.e. Section 3(d) of the Act which reads as under: - "The expression "Collector" means the Collector as defined in the Land Revenue Act, 1996". 9. In this connection it shall be advantageous to notice the relevant provision i.e. Section 3(d) of the Act which reads as under: - "The expression "Collector" means the Collector as defined in the Land Revenue Act, 1996". In terms of Section 6(2) of the Land Revenue Act, Deputy Commissioner of a District shall be the Collector whereas same position is controlled by sub-section 4(a) of Section 6 of the Act. Sub-section 4(a) is reproduced here-under:- "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 10. In terms of said sub-section of Section 6, the Government has issued the notification i.e. SRO 213 dated 16th of May, 1966 which is quoted here-under:- "...... in exercise of powers conferred by sub-section 4 of Section 6 of the Jammu and Kashmir Land Revenue Act, Samvat 1966, the Government hereby invests the powers of Collector for purposes of land acquisition works in Territorial Assistant Commissioners to be exercised by them within their respective jurisdiction." 11. The said notification so far has not been revoked nor anything in that direction has been brought to the notice of the Court. The notification has been issued in the year 1966, District Shopian has been carved out recently but operation of the notification is in continuity. Its operation is not restricted in point of time. When it is so, the contention raised by the learned counsel for the petitioners loose significance so shall stand repelled accordingly. 12. It is next contended on behalf of petitioners that the land for construction of Mini Secretariat was identified at Gagran Shopian and notified accordingly under Section 4 of the Act. Same has not been de-notified. Without de-notifying the same, land at Batapora could not be notified for the same purpose, so a malafide action. 13. Before addressing the question of malafide intention, it shall be quite apt to advert to the validity of the acquisition proceedings vis-a-vis land situated at Gagran. The perusal of the record as produced presents a disturbing position. Initially CPO had issued the indent for acquisition of 55 kanals and 11 marlas on 14.8.2007. Same land was notified in terms of Section 4 of the Act by the Collector. The perusal of the record as produced presents a disturbing position. Initially CPO had issued the indent for acquisition of 55 kanals and 11 marlas on 14.8.2007. Same land was notified in terms of Section 4 of the Act by the Collector. Then again an indent for land measuring 34 kanals and 14 marlas was sent to the Collector by the CPO. Same has been notified under Section 4 by the Collector on 14.10.2007. 14. Both the notifications issued under Section 4 of the Act do not satisfy the requirements of Section 4 of the Act because in terms of Section 4 when land is needed for public purpose. the Collector has to notify it through a. public notice to be affixed at convenient place in the said locality and shall also cause it to be known by beat of drum and through the local Panchayats and Patwaries; shall also be published in two daily newspapers having largest circulation in the said locality of which at least one shall be in the regional language. Prior to the amendment in Section 4 made in 1990, it was also required to be notified in the Government gazette. 15. The records as produced would reveal that the first notification vis-a-vis land measuring 55 kanals and 11 marlas is shown to have been published in daily newspaper Srinagar Times in its issue dated 24.8.2007, the cutting of which is placed on record. So far as second notification vis-a-vis 34 kanals 14 marlas is concerned, no newspaper has been placed on record so as to show that the same has been got published in the newspaper. 16. So from the records it nowhere appears that the notification has been affixed at convenient place nor it is shown that it was made known to the public by beat of drum and through local Panchayat. Additional requirement of its publication in two daily newspapers having largest circulation in the said locality and out of which one should have been in the regional language is wanting. Simply earlier notification has been published in daily Srinagar Times which is not enough. The purpose and object of Section 4(a)(b)(c) has been defeated. Non compliance of the mandatory requirement of notifying the land required for public purpose in the modes as prescribed by Section 4 invalidates the entire acquisition proceedings. Simply earlier notification has been published in daily Srinagar Times which is not enough. The purpose and object of Section 4(a)(b)(c) has been defeated. Non compliance of the mandatory requirement of notifying the land required for public purpose in the modes as prescribed by Section 4 invalidates the entire acquisition proceedings. When it is so, the question of de-notifying the earlier identified land for acquisition has got no meaning because that is not to be treated to have been legally and validly notified for acquisition. 17. Perusal of the record would show that CPO had addressed a communication dated 3.11.2007 requesting the Collector to de-notify the earlier notified land as in terms of some decision taken on spot on 25.10.2007 land measuring 47.05 kanals have been identified at Batapora, same be acquired, based on which the Collector on 7.11.2007, on records, is shown to have recorded that the land is de-notified. 18. When land notified is not required to be acquired or the withdrawal of the same is required, same has to be de-notified the way same has been notified and in this connection Section 21 of The General Clauses Act, 1977 applies which reads as under:- 21. Power to make, to include power to add to, amend, vary or rescind, orders, rules or bye-laws. Where, by an Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued." 19. The de-notification in such form will have no meaning as both notification and de-notification will remain defective in any case, when the notification for acquisition has invalidated the entire proceedings, formal de-notification in the like manner in the circumstances has got no meaning at all. 20. It is next contended on behalf of petitioners that the acquisition proceedings initiated vis-a-vis land situated at Batapora is totally invalid because the Collector has observed the requirement of Section 4 of the Act in breach. The Collector was required to notify the land needed for public purpose by issuing public notice to be affixed at convenient place and also cause it to be known by beat of drum and through local Panchayat and Patwaries. None of the said requirements has been complied with. The Collector was required to notify the land needed for public purpose by issuing public notice to be affixed at convenient place and also cause it to be known by beat of drum and through local Panchayat and Patwaries. None of the said requirements has been complied with. The other requirement was to get it published in two daily newspapers having largest publication, one of which was required to be in the regional language. The Collector has got the notification published in daily newspaper Kashmir Uzma and Khidmat on 24.11.2007. The said two newspapers do not have largest circulation; more particularly newspaper Khidmat has a minimum circulation. 21. Learned counsel has relied on judgments reported in AIR 1985 SC 1622, AIR 1999 Patna 90, AIR 1994 J&K 62 & AIR 2007 SC 1675. In AIR 1985 SC 1622, at para 13 non compliance to Section 4(1) has been considered and it has been held:- "A bare perusal of S. 4(1) clearly shows that in order to comply with the statutory requirements therein set out, a notification stating therein the land which is needed or is likely to be needed for a public purpose has to be published in the official Gazette. The second part of the sub-section provides that the Collector has to cause public notice of the substance of such notification to be given at convenient places in the locality in which the land proposed to be acquired is situated. Both the conditions are held by a catena of decisions to be mandatory. Whether the second condition is mandatory or directory is no more res Integra. The law has prescribed that in addition to the publication of the notification in the Office Gazette, the Collector must also give publicity of the substance of the notification in the concerned locality. Unless both these conditions are satisfied, S.4 of the Land Acquisition Act cannot be said to have been complied with. The publication of a notice in the locality is a mandatory requirement. Relying on this observation Mr. Unless both these conditions are satisfied, S.4 of the Land Acquisition Act cannot be said to have been complied with. The publication of a notice in the locality is a mandatory requirement. Relying on this observation Mr. Kacker urged that if the underlying purpose behind publication of a notice in the locality is to give an opportunity to the person interested in the land to object to the acquisition, wherein a case the purpose is achieved as in this case the petitioner having filed his objections, the failure to publish the substance of the notification in the locality need not be treated fatal and cannot invalidate the proceedings. The submission as presented is very persuasive and but for binding precedents, we would have accorded considerable attention to it. But we would not whittle down a mandate of legislation recognized by a long line of decisions solely depending upon the facts of a given case. Further the submission is predicated upon an assumption that the sole purpose behind publication of substance of notification in locality is to make requirements of S. 5A functionally effective. The assumption as would be pointed out is not well founded. It was pertinently observed that provisions of S.4(1) cannot be held to be mandatory in one situation and directory in another and, therefore, it cannot be said that the only purpose behind making the publication of notice in the locality mandatory is to give an opportunity to the persons interested in the land to file objections under S.5(A). of course, what other object it seeks to sub-serve has been left unsaid. But the answer is not for us to seek. At least we have no doubt that the only visible and demonstrable purpose behind publication of the substance of the notification under S.4(l) in the locality where the land proposed to be acquired is situated, is to give the persons interested in the land due opportunity to submit their considered objections against the proposed notification." 22. In AIR 1999 Patna 90, the Division Bench of Patna High Court has considered the requirement of publication of notification in two local newspapers and it has been held that failure to do as required renders the proceedings invalid. In AIR 1999 Patna 90, the Division Bench of Patna High Court has considered the requirement of publication of notification in two local newspapers and it has been held that failure to do as required renders the proceedings invalid. Para 24 is apt to be quoted:- "For the reasons discussed above, it must be held that requirement of publication of the notification in two daily newspapers, one of which must be in the regional language, is mandatory and the failure of the authorities to publish the notification under Section 4(1) in two newspapers has rendered the proceedings invalid and liable to be quashed." 23. In AIR 1994 J&K 62, the Division Bench of this Court considered the requirement of complying with Section 4 of the Act. In the reported judgment it has been noticed that neither notice has been published in Government gazette nor it has been affixed at a convenient place in the locality concerned nor made it public by beat of drum or through local Panchayat. 24. No affidavit in this connection has been filed by the Collector, Patwari or head of the Panchavat which would show that the notification so issued was made known to public in the locality. Both the conditions prescribed under Section 4 were to be satisfied being mandatory requirement as otherwise the purpose of such publication in the form prescribed under the Act would get defeated. 25. In AIR 2007 SC 1675, while noticing the requirement of publication as prescribed under Section 6(2) of the Land Acquisition Act (Central) the Honble Apex Court held as: "Section 6(2), on a plain reading, deals with the various modes of publication and they are: (a) publication in the. Official Gazette, (b) publication in two daily newspapers circulating in the locality in which the land is situated of which at least one shall be in the regional language, and (c) causing public notice of the substance of such declaration to be given at convenient places in the said locality. There is no option left with anyone to give up or waive any mode and all such modes have to be strictly resorted to. The principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then that thing or act must be done in accordance with the manner prescribed there-for in the Act." 26. The principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then that thing or act must be done in accordance with the manner prescribed there-for in the Act." 26. Learned counsel appearing for the respondent State would contend that all the requirements have been complied with. Further-more declaration has been issued under Section 6 of the Act by the Government; therefore, acquisition of the land for public purpose is not open to be interfered with. 27. While considering the respective submissions vis-a-vis compliance/non-compliance of the requirements of Section 4 of the Act, the perusal of the records as produced is presenting a very disturbing state of affairs. Entire process has been hoodwinked. Process for acquisition has been initialed at respective levels in a most confusing state of mind. What to speak of complying with the requirements of the Act, the very basis for acquisition of land has been made confusion worst confounded. It is not only the compliance of the requirements of the Act which has become causality but the record produced also shows that the matter has been dealt with in the most confusing state of affairs. As a result thereof construction of Mini Secretariat, an elementary requirement for a newly created district headquarter, has got delayed, as a result thereof construction cost as well as cost of the land to be acquired by now must have gone very high. 28. Be it as it is, the question is as to whether there can be any relaxation in not complying with the legal requirements before acquiring the land. The answer shall be in negative. 29. It shall be quite interesting to notice the, strange way of dealing with the matter by the respective authorities. The CFO on 14.11.2007 has sent indent for acquisition of 69 kanals, 16 marlas and 3 sirsais for construction of Mini Secretariat at village Batapora. Collector is shown to have issued notification under Section 4(1) of the Act on 13.1.2007, that too only for the land measuring 47 kanals, 15 marlas and 4 sirsais. The said notification is shown to have been published on 24.11.2007 in two daily newspapers i.e. daily Khidmat and daily Kashmir Uzma. If the indent was sent on 14.11.2007, how the Collector has issued the notification on 13.11.2007, has remained to be explained. The said notification is shown to have been published on 24.11.2007 in two daily newspapers i.e. daily Khidmat and daily Kashmir Uzma. If the indent was sent on 14.11.2007, how the Collector has issued the notification on 13.11.2007, has remained to be explained. Furthermore on the copy of one such notification placed on record, Chowkidar has recorded that the Zamindars (land owners) have been informed to file objections and a copy has been affixed. Same is shown to have been done on 24.11.2007 when the requirement of Section 4 is that it should have been made known to the public by beat of drum, through local Panchayats or through Patwaries but nothing in that direction has been placed on record except its publication in two newspapers which are claimed to be having no such largest publication. Even in absence of its notification through beat of drum, through Panchayat or affixing copies of it renders the purpose of notification as invalid. 30. The afore-stated position apart, if the indent was for 69 kanals, why only 47 kanals and 16 marlas were notified. This position is further made confusing as the CPO is shown to have forwarded one more indent on 15.11.2007 for land measuring 22 kanals and 8 sirsais. The Collector in turn has issued one more notification under Section 4(1) on 23.11.2007 vis-a-vis said land measuring 22 kanals and 8 sirsais. Copy of this notification placed on record would reveal that the Chowkidar is shown to have affixed the copy at a convenient place but it is not shown where and at how many places same has been affixed and again same is shown to have been affixed on 30.11.2007. So far as this notification is concerned, it has not been published in any newspaper. Neither anything is on the record to show that the land notified in terms of Section 4 of the Act on 23.11.2007 has been published in any newspaper nor it is shown to have been made known to public by beat of drum or through local Panchayat and Patwaries. The Collector has miserably failed to comply with the requirements of Section 4 of the Act. 31. The Collector has miserably failed to comply with the requirements of Section 4 of the Act. 31. Another aspect of the matter which is also very surprising is that declaration has been issued by the Government under Section 6 i.e. Notification No.91-RD of 2008 has been issued on 5.3.2008, wherein it is mentioned that the land measuring 69 kanals, 16 marlas and 3 sirsais were notified by the Collector Land Acquisition on 13.11.2007 and 23.11.2007, the land has been found to be required for public purpose and the Collector Land Acquisition has been directed to take order for acquisition and also to complete the formalities including those under Section 9(2) and Section 17(a) of the Land Acquisition Act. It is quite surprising that land measuring 69 kanals, 16 marlas and 3 sirsais, though shown to have been notified but not notified in accordance with Section 4 of the Act and before issuing said order it has not been noticed that the land measuring 22 kanals required to be acquired as shown to have been notified on 23.1 1.2007 has not been published in any newspaper as was mandatory requirement. 32. Then again very strange situation, on receipt of notification No.91-RD of 2008 what the Collector has done is that he has issued notification under Section 9 and 9(2) of the Act. While doing so has referred to the initial notification under Section 4(1) dated 13.11.2007 and 23.11.2007 and has then referred to notification No.91-RD dated 5.3.2008 and has made mention of only 46 kanals, 13 marlas and 4 sirsais. 33. All the authorities at respective levels have given different details and different positions as slated above which totally invalidates all the proceedings so far initiated for acquisition of the land. 34. The Honble Supreme Court in the judgment captioned Kanwar Pal Singh v. State of UP 65 Ors with Sumandra Singh & anr v. State of UP & Ors (AIR 2007 SC 1675) has laid down the principle as to what is the mode of publication as prescribed by a particular provision of the Act. The modes of publication less or more are similar to the modes and methods prescribed under Section 4 of the State Acquisition Act and it has been categorically held that there is no option to anyone to give up or waive any mode and all such modes have to be strictly resorted to. The modes of publication less or more are similar to the modes and methods prescribed under Section 4 of the State Acquisition Act and it has been categorically held that there is no option to anyone to give up or waive any mode and all such modes have to be strictly resorted to. It has also been held that the principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then that thing or act has to be done in accordance with the manner prescribed there-for in the Act. In this connection para 16 stands referred to hereinabove. 35. Applying the same principle to the present case, the Collector has not observed provisions of the Land Acquisition Act, more particularly compliance to the modes and methods for notifying the land needed for public purpose has become causality. 36. The acquisition proceedings on both factual side as well as legal side is nothing but a bundle of mess confusion and can be termed to be a bundle of waste paper required to be ignored. 37. It is to be made clear that indenting department should be at liberty to issue a fresh indent for the acquisition of a volume of land as shall be required. On receiving such indent, the Collector is required to issue the notification in accordance with Section 4 of the Act and while doing so has to strictly comply the modes and methods prescribed there-for. Thereafter the Collector is required to hear the objections of the persons interested as is envisaged by Section 5(a) of the Act. It is to be made clear that the "person interested" is well defined in Section 3(b) of the Act to mean a person claiming interest in compensation and person who is interested in an easement affecting the land, ft is such persons who are required to be heard. The Collector is required to give them the hearing. Thereafter if he feels necessary, has to submit case for approval to the Government together with the record of proceedings. Decision of the Government on the objections of the "interested persons" shall be final. It is thereafter the Government has to issue the notification in terms of Section 6 of the Land Acquisition Act. Then other provisions arc to be followed. 38. Decision of the Government on the objections of the "interested persons" shall be final. It is thereafter the Government has to issue the notification in terms of Section 6 of the Land Acquisition Act. Then other provisions arc to be followed. 38. In the instant case it is noticed that somebody has filed objections before Divisional Commissioner, some traders Federation has also filed objections. It is to be made clear that all the objections by any objector (interested person) shall have to be filed before Collector. 39. It is also to be made clear that it is the indenting department who has to issue the requisition for acquisition of suitable land for the construction of Mini Secretariat. Therefore, the question of identification of land at any place shall be within the domain of the indenting department. Same is not open to question unless some mala fide intentions in selection of the land appears which is open to be objected before the Collector by the interested persons i.e. the person who has interest in compensation and is interested in an easement affecting the land. 40. In the upshot, the acquisition proceedings initiated both for the land at Gagran and for the land at Batapora Shopian are totally invalid for the reasons stated hereinabove, so entire process and the proceedings so far initiated for acquisition of land for the construction of Mini Secretarial at Shopian are quashed. 41. The proceedings for acquisition of land for construction of Mini Secretariat shall be initiated afresh. The earlier proceedings pertaining to land at Gagran and Batapora Shopian shall be ignored. The indenting department if still requires the land, shall be at liberty to issue the indent afresh for land, be it at Batapora, Gagran or any place which they may require for the construction of Mini Secretariat and thereafter Collector shall initiate proceedings while keeping in view the observations made hereinabove and conclude the process with reasonable dispatch. While doing so the authorities at respective levels shall strictly adhere to the modes and methods and procedure as envisaged by the provisions of Land Acquisition Act. 42. Writ petition succeeds and accordingly disposed of. The record as produced be returned to the learned counsel for the respondents.