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2016 DIGILAW 526 (JK)

Gajinder Singh v. State

2016-10-13

ALOK ARADHE

body2016
JUDGMENT : Alok Aradhe, J. 1. In these writ petitions, the petitioners have assailed the notification dated 22.10.2011 issued under Section 4 of the Jammu and Kashmir Land Acquisition Act, Svt. 1990 (hereinafter referred to as the Act). The petitioners also seek a writ of mandamus to the respondents to treat the petitioners at par with the adjoining occupants in possession of the lands whose land has been de-notified from acquisition. In order to appreciate the petitioners' challenge to the impugned proceedings, few facts need mention which are stated infra. An indent was placed by the Irrigation and Flood Control Department for acquisition of land admeasuring 123 kanals situate at Rakh-Raipur, Tehsil and District Jammu for detouring of canals due to expansion of Jammu Airport. A notification was published under Section 4(1) dated 21.10.2011 in the daily newspapers on 23.10.2011 by which the objections were invited, however, no objections were received. Thereupon, a notification under Sections 6 and 7 of the Act was issued on 08.11.2012 and subsequently, a notification under Section 9 and 9-A of the Act was issued on 18.12.2012 and an award was passed on 24.07.2014. Thereafter the writ petitions were filed in the month of August, 2014. 2. Learned counsel for the petitioners submitted that the notification under Section 4(1) of the Act was not published by affixing the same at conspicuous places as well as by beat of drums and was not published in two newspapers having wide circulation. It is further submitted that even though the Collector had directed publication of notification under Section 4(1) of the Act in Daily Excelsior, however, the same was published in Daily Greater Jammu which had started its publication in the year 2010. It is further submitted that Daily Greater Jammu and Kashmir Uzma do not have wide circulation in Jammu. It is further submitted that though specific averments have been made in the writ petition that the notification under Section 4(1) of the Act was neither published by beat of drums nor fixed at conspicuous places. However, aforesaid stand has not been contradicted in the reply. It is further submitted that the notification under Section 6 of the Act suffers from the vice of non application of mind inasmuch as no dates have been published in the notification. However, aforesaid stand has not been contradicted in the reply. It is further submitted that the notification under Section 6 of the Act suffers from the vice of non application of mind inasmuch as no dates have been published in the notification. It is also submitted that the project for which the land is sought to be acquired is not in public interest. In support of the aforesaid submissions, learned counsel for the petitioners have placed reliance on decisions in the cases of M/s. V.K.M. Kattha Industries Pvt. Ltd. Vs. State of Haryana and others, AIR 2013 SC 3557 , Raghbir Singh Sehrawat Vs. State of Haryana and Ors., AIR 2012 SC 468 , Patasi Devi vs. State of Haryana and Ors., AIR 2013 SC 856 and Ali Mohd. Najar & Ors. vs. State & Ors., JKJ Soft JKJ/25223 : 2010 (2) JKJ 478 [HC], Bansi Lal Bhat vs. State of J & K & Ors., JKJ Soft JKJ/26811 : 2012 (4) JKJ 272 [HC], Balkrishan Dutta v. State of J&K, JKJ Soft JKJ/11874 : AIR 1975 J&K 27 , Vishwa Nath v. Collector & Ors., JKJ Soft JKJ/22208 : 1982 KLJ 179. 3. On the other hand, learned counsel for the respondents have produced the newspapers namely Amar Ujala, Greater Jammu as well as Kashmir Uzma dated 23.10.2011 and submitted that the notice under Section 4(1) of the Act was published in the newspapers by which it was notified that land admeasuring 123 kanals were required to be acquired for the purpose of project in question. It is further submitted that the notification under Section 4(1) of the Act has been published in accordance with Section 4 of the Act and the petitioners in their objections under Section 9 and 9-A did not raise any objection with regard to invalidity of the proceedings with regard to notification under Section 4 and notification under Section 6 of the Act. It is further submitted that the petitioners in OWP No. 1320/2014 are not the owners of the land in question but are the encroachers who have applied for regularization of their possession and however the compensation in respect of the super structure belonging to the petitioners has been determined. 4. I have considered the submissions made by learned counsel for the parties. 4. I have considered the submissions made by learned counsel for the parties. Admittedly the core issue involved in these writ petitions is with regard to validity of the notification under Section 4 of the Act. The Supreme Court in the case of Special Deputy Controller, Land Acquisition, CMDA v. J. Sivaprakasam and others, (2011) 1 SCC 330 has held that the acquiring authority need not prove actual notice of the proposal to acquire under Section 4(1) of the Act, to the person challenging the acquisition. As the purpose of publication of public notice provided in Section 4(1) of the Act is to give notice of the proposal of acquisition to the persons concerned, such notice can also be by way of implied notice or constructive notice. For this purpose, reference to the difference between actual, implied and constructive notice is made: 1. When notice is directly served upon a party in a formal manner or when it is received personally by him, there is actual notice. 2. If from the facts it can be inferred that a party knew about the subject matter of the notice, knowledge is imputed by implied notice. 3. Notice arising by presumption of law from the existence of certain specified facts and circumstances is constructive or deemed notice. In the case of Swaran Lata v. State of Haryana, (2010) 4 SCC 532 , the Supreme Court has held as follows: "11........the only ground taken in the writ petition has been that substance of the notification under Section 4 and declaration under Section 6 of the 1894 Act had been published in the newspapers having no wide circulation. Even if the submission made by the petitioners is accepted, it cannot be presumed that they could not be aware of the acquisition proceedings for the reason that a very huge chunk of land belonging to a large number of tenure-holders had been notified for acquisition. Therefore, it should have been the talk of the town. Thus, it cannot be presumed that petitioners could not have knowledge of the acquisition proceedings." In view of the aforesaid enunciation of the law and the fact situation of the case, it is evident that the petitioners had constructive notice about the proceedings for acquisition under the Act. Therefore, it should have been the talk of the town. Thus, it cannot be presumed that petitioners could not have knowledge of the acquisition proceedings." In view of the aforesaid enunciation of the law and the fact situation of the case, it is evident that the petitioners had constructive notice about the proceedings for acquisition under the Act. The petitioners are residents of the same village, namely, Rakh-Raipur and a huge chunk of land was acquired i.e. 123 Kanals and therefore, it must have been top of the village. Therefore, it is inconceivable that the petitioners had no knowledge about the proceedings of acquisition under the provisions of the Act. Therefore, in the fact situation of the case, safely an inference can be drawn that the petitioners had a constructive notice about the proceedings for acquisition under the Act. 5. Besides that the petitioners acquired the knowledge about the proceedings under the Act on 18.12.2012 i.e. on publication of notification under Sections 9 and 9-A of the Act pursuant to which they have preferred objections. The Petitioner in OWP No. 1156/2014 has made the following demands: (i) Relocation allotment in urban area nearer to this area. (ii) Monetary compensation of four lakh per Maria minimum. (iii) Full monetary compensation in one installment and make your construction work start after paying full amount. (iv) Government employment of one family member of each family. (v) The Government has valued the cost of our houses structures is 14 lakh and 2 lakh (approximately). But this amount is not enough for constructing new same structure in one place. So please make proper valuation of our structure. The Petitioners in OWP No. 1320/2014 have made the following demands: (i) That in case the land and houses under occupation of the applicants/objectors is acquired. Applicants/objectors will come on the road side and being poor migrated families will not be in a position to purchase land and construct their houses. (ii) That Escape channel D-9A and Tawi feeder Channel of Ranbir Canal can be shifted to vacant state land adjoining to the houses of the applicants. Applicants/objectors will come on the road side and being poor migrated families will not be in a position to purchase land and construct their houses. (ii) That Escape channel D-9A and Tawi feeder Channel of Ranbir Canal can be shifted to vacant state land adjoining to the houses of the applicants. (iii) That in case land and houses constructed over land measuring 5 kanals comprising khasra No. 236 min and 237 min cannot be dropped from the acquisition proceedings, the applicants being migrants of Kashmir valley may be provided land somewhere else and also compensation of the structure/houses may be paid to them. (iv) It is therefore, prayed that keeping in view the submissions made above, the proposed acquisition of land measuring khasra Nos. 236 min and 237 min situated at village Rakh Raipur (Upper Beli Cherana) may please be dropped or in the alternative any other suitable land may be provided to applicants/objectors and compensation for the structure of house may also be paid to them as per the prevalent rate of cost of construction. 6. Admittedly, the petitioners had preferred their objections pursuant to the notification published under Sections 9 and 9-A of the Act on 18.12.2012. However, the writ petitions have been filed in the month of August, 2014 i.e. after passing of the award for which no explanation has been offered. The writ petition suffers from unexplained delay and latches which disentitles the petitioners to seek any relief in exercise of extraordinary discretionary jurisdiction. It is pertinent to mention here that the petitioners have also failed to offer any explanation as to why they did not take a stand with regard to invalidity of the notification under Sections 4 and 6 of the Act in the objections which was filed for the first time under Sections 9 and 9-A of the Act and made the demand for suitable compensation and for alternative sites. Besides that, petitioners in OWP No. 1320/2014 are not the owners of land in question and therefore as such are not entitled to compensation; however, the compensation in respect of super structures has been fixed by the Collector. 7. Besides that, petitioners in OWP No. 1320/2014 are not the owners of land in question and therefore as such are not entitled to compensation; however, the compensation in respect of super structures has been fixed by the Collector. 7. The Supreme Court in the case of May George v. Special Tehsildar and Ors., (2010) 13 SCC 98 has held that where a large tract of land is required, challenge to the land acquisition proceedings at the instance of the persons owning a small tract of land vis-à-vis. total land cannot be entertained, in the case where the award is passed and compensation has been determined. In OWP No. 1320/2014, only 5 kanals of land is involved whereas in OWP No. 1156/2014, land admeasuring 7 kanals and 15 marlas is involved, whereas total land which is involved in proceeding initiated under the Act is 123 kanals. This approximately 111 kanals of land i.e. major chunk of land has already been acquired and possession has already must have been taken. Therefore, in view of the law laid down by the Supreme Court in the case of May George Supra, no interference is called for; specially when the Award has been passed. 8. So far as the contention of the petitioners that the proceedings under Section 4 of the Act are vitiated in law on account of non compliance with Section 4 of the Act is concerned, the same does not deserve acceptance as this Court has already held that the petitioners had constructive notice about the proceedings under the Act and in objections filed pursuant to the notice under Section 9 and 9-A of the Act, the petitioners did not raise any objection with regard to the validity of the notification under Section 4 of the Act. Therefore the decisions relied upon by learned counsel for the petitioners rendered in AIR 2013 SC 856 , 2012 Legal Eagle (J&K) 404, 1974 Legal Eagle (J&K) 7, AIR 2012 SC 2718 , AIR 2012 SC 468 , 1981 Legal Eagle (J&K) 15, 2012 Legal Eagle (J&K) 404 are of no assistance to them in the fact situation of the case. 9. The petitioners have also failed to explain the delay and latches on their part as they have approached this Court after a period of one year and eight months after acquiring the knowledge of the proceedings for acquisition of their land. 9. The petitioners have also failed to explain the delay and latches on their part as they have approached this Court after a period of one year and eight months after acquiring the knowledge of the proceedings for acquisition of their land. For this also, the petitioners are not entitled to any relief. In view of preceding analysis, I do not find any merit in the writ petitions. Needless to state that the petitioners would be at liberty to make a prayer to the competent authority with regard to allotment of land at an alternative site and the competent authority shall consider the prayer of the petitioners in accordance with the law by a speaking order within a period of two months from the date of receipt of certified copy of the order passed today. Accordingly, the writ petitions are disposed of.