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2016 DIGILAW 307 (JK)

Farooq Ahmad Band v. State of JK

2016-06-01

ALI MOHD.MAGREY, MUZAFFAR HUSSAIN ATTAR

body2016
JUDGMENT : MUZAFFAR HUSSAIN ATTAR, J. 1. The petitioners have called in question the Notification issued under section 4(1) of State Land Acquisition Act by the Collector, Land Acquisition (NHW) four laning, dated 20th May, 2014, inter alia on the ground that the Notification has not been published in the manner prescribed u/s 4(1) of Land Acquisition Act and objections filed by the petitioners have not been considered. 2. Respondents have filed the reply affidavit. 3. Mr. G. A. Lone, learned counsel appearing for the petitioners referred to the aforesaid Notification and submitted that same has not been published in two Newspapers as is mandate contained in Section 4(1) of the Land Acquisition Act. Learned Counsel submitted that in terms of the section 4(1) of the Land Acquisition Act, the Notification has to be affixed at convenient places in the locality and it is to be known by beat of drum as also through the local Panchayats and Patwaries. Learned counsel also referred to Section 5(A) of the Land Acquisition Act and submitted that the objections of the interested persons are required to be considered and objectors are to be given opportunity of hearing either through pleader or by a person authorized by them. Learned counsel submitted that in the admitted facts of this case respondents have acted in breach of provisions of Section 4 and Section 5(A) of the Land Acquisition Act which renders acquisition proceedings illegal. 4. Learned counsel referred to the material placed on record to show that the objections filed u/s 5(A) have not been considered. Learned counsel in support of his contention referred to the judgment of Hon’ble the Supreme Court reported in AIR 2014, SC 2242, 2011(1) SCC 714, 2012 (2) SLJ 670 and submitted that the petition in view of law laid down by Hon’ble the Supreme Court and by this Court deserves to be allowed. 5. Mr. N. H. Shah, learned AAG appearing for the official respondents while referring to the record admitted that the Notification u/s 4(1) has been published in only one Newspaper. Learned counsel, however, submitted that the objections filed by the petitioners have been considered by the Competent Authority and thereafter matter was referred to the Authority for issuance of declaration u/s 6 of the Land acquisition Act. Learned counsel, however, submitted that the objections filed by the petitioners have been considered by the Competent Authority and thereafter matter was referred to the Authority for issuance of declaration u/s 6 of the Land acquisition Act. Learned counsel referred to 2011 (1) SCC 330 and submitted that the petitioners having the knowledge of the Notification published u/s 4(1), none of their rights are infringed. Learned counsel also submitted that the Notification has been issued in only one Newspaper but requirement provided under section 4(1) of the Land Acquisition Act have been complied with. 6. Mr. Jehangir Iqbal Ganai, learned Senior counsel appearing for the executing agency has filed the application for impleadment of his client Contractor/Executing Agency. While referring to the judgment of Hon’ble the Supreme Court reported in 1997(1) SCC 134 , learned Sr. counsel submitted that non-compliance of Statutory provisions will not in all circumstances result in quashing of Acquisition proceedings. 7. Right to hold the immovable property continues to be fundamental right in the State of Jammu and Kashmir in terms of Article 19(f). Article 31(1) provides that no person shall be deprived of his property save by authority of law. Article 31(2) further provides that no property shall be compulsorily acquired or requisitioned save for the public purpose and save by authority of law. 8. In the State of Jammu and Kashmir, Land Acquisition Act is law which authorizes for compulsory acquisition of the immovable property for public purpose. 9. In the admitted facts and circumstances of this case, there is no compliance of Section 4(1) of the Land Acquisition Act inasmuch as, admittedly the Notification has not been published in two daily Newspapers, but has been published in only one Newspaper. Admittedly there is breach of Section 4(1) of the Land Acquisition Act. 10. In view of the legal position, right to hold the immovable property continues to be the fundamental right guaranteed under Article 19(1) (f) in State of Jammu and Kashmir. The authorities are duty bound to faithfully follow the mandate contained in Land Acquisition Act. 11. Admittedly there is breach of Section 4(1) of the Land Acquisition Act. 10. In view of the legal position, right to hold the immovable property continues to be the fundamental right guaranteed under Article 19(1) (f) in State of Jammu and Kashmir. The authorities are duty bound to faithfully follow the mandate contained in Land Acquisition Act. 11. The question is not only of obtaining the knowledge of proposed acquisition of the property, but one of the fundamental issue of legal importance , in terms of Section 4(2), is that after the Collector notifies any land in the manner prescribed under Section 4(1) being needed or likely to be needed for the public purpose, it then only becomes lawful for any officer either generally or specially authorized by the Government in this behalf to enter upon the said land. The Officer in terms of the Sate Land Acquisition Act can enter into the land proposed to be acquired only after Notification is issued and published in terms of Section 4(1) of the Land Acquisition Act. Admittedly the Notification has not been issued in terms of Section 4(1) of the Land Acquisition Act. No such officer will thus have legal right to enter upon the land which is proposed to be acquired. 12. Besides, when there is non-compliance of Statutory Provision which affects the fundamental right of a person to hold the immovable property, the acquisition proceedings are rendered illegal and unconstitutional. 13. The Authorities have taken different stands at different occasions, inasmuch as, in the Notification issued u/s 6 of the Land Acquisition Act, it is stated that the objections to the Notification issued u/s 4(1) have not been filed within the prescribed time. Same is stand taken in proposed award also. Whereas, in the reply affidavit filed by the official respondents, position is tried to be clarified by saying that objections were considered. Nothing is said either in the reply affidavit nor shown by the records that the objectors were heard in person which is requirement of Section (5) (A) of the State Land Acquisition Act. 14. Breach of Provisions of Land Acquisition Act has affected the fundamental right of petitioners guaranteed under Article 19(f) and 31 of Constitution of India. 15. Nothing is said either in the reply affidavit nor shown by the records that the objectors were heard in person which is requirement of Section (5) (A) of the State Land Acquisition Act. 14. Breach of Provisions of Land Acquisition Act has affected the fundamental right of petitioners guaranteed under Article 19(f) and 31 of Constitution of India. 15. The judgments cited at bar by learned counsel for the respondents in the facts of this case do not support his submissions, inasmuch as, 2011(1) SCC 330 , the main issue which had cropped up before the Court was whether, it can be said that the land holders had notice that was published in the newspapers having little circulation. In that case, there was compliance of the Section 4, inasmuch as, Notification was published in two daily newspapers. In this case, admittedly the Notification is issued in only one Newspaper. 16. In other judgment of 1997, Hon’ble the Supreme Court has not laid the law but has made observations which do not constitute binding precedent. 17. In our aforestated discussions, we are supported by the Division Bench Judgment of this Court reported in 2012 (2) JKJ 43 (HC). 18. For the above stated reasons, this writ petition is disposed of in the following manner: 19. By issuance of writ of certiorari, Notification issued u/s 4(1) of the Land Acquisition Act and subsequent Notifications including draft award are quashed. 20. Respondents are at liberty to initiate fresh process for acquisition of land which is subject matter of this writ petition, in case same would be required for any public purpose. 21. Disposed of as above.