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2016 DIGILAW 634 (JK)

Kanwar Krishan Dhar v. State of J&K

2016-12-07

ALOK ARADHE

body2016
JUDGMENT : Alok Aradhe, J. 1. In this writ petition preferred under Article 226 of the Constitution of India read with section 103 of the Constitution of the State of Jammu and Kashmir, the petitioners inter-alia seek quashment of Notification issued by respondent No. 5 under sections 4(1), 6 and 7 dated 18.03.2009 as well as notice under sections 9 and 9(a) of the State Land Acquisition Act, Samvat 1990 (hereinafter to be referred as the Act). The petitioners also seek quashment of tentative award dated 03.10.2009 and final award dated 17.04.2010 issued by respondent No. 5. The petitioners also seek writ of prohibition directing the respondents not to acquire the land of which the petitioners are the owners. In order to appreciate the petitioners' grievance, few facts need mention, which are stated infra. 2. The petitioners are the owners and in possession of the land, particulars of which, have been given in paragraph 2 of the writ petition, which is situate at Bhagat Barzulla, Srinagar. The petitioners are migrated from Kashmir Valley and have migrated there from sometime in the year, 1990. The proceeding for acquisition of the said land was initiated in the year 1994, which were quashed vide order dated 30.03.2001 passed by a Bench of this Court in OWP No. 706/1996. It is the case of the petitioners that in the aforesaid writ petition, the petitioners have given their registered addresses. 3. The Deputy Commissioner, Srinagar received intent from the Principal/Dean, Government Medical College, Srinagar vide communication dated 11.04.2007 for expansion of Bone and Joint Hospital, Barzulla, Srinagar. Thereupon, notification under section 4(1) of the Act was issued on 23.04.2007 and interested persons were requested to submit their objections within the stipulated time frame. However, objections have not been received from the land owners. Thereupon, the matter was referred to the Financial Commissioner (Revenue) for approval for issuance of notification under sections 6 and 7 of the Act on 22.09.2009. After receipt of the approval, notices under sections 9 and 9(a) were issued on 15.06.2009. However, no claim/objections were received from the land owners or from the Indenting Department within the stipulated period. Thereafter, tentative award was passed on 03.10.2009, pursuant to which some land owners including the petitioners had filed their objections. However, the aforesaid objections could not be considered as the same were filed beyond the prescribed period of time. However, no claim/objections were received from the land owners or from the Indenting Department within the stipulated period. Thereafter, tentative award was passed on 03.10.2009, pursuant to which some land owners including the petitioners had filed their objections. However, the aforesaid objections could not be considered as the same were filed beyond the prescribed period of time. Thereafter, final award was passed on 17.04.2010. It is case of the respondents that possession of land measuring 14 kanals and 08 marlas and 214 sft. was taken on 16.04.2010. It has further been averred that an amount of Rs. 4,89,15,711.00 has been deposited with the Relief Commissioner (Migrants), Jammu for disbursement in favour of the land owners. In the aforesaid factual background, the petitioners have approached this Court seeking relief as stated supra. 4. Learned counsel for the petitioners submitted that the provisions of section 4(1) of the Act have not been complied with as neither the notice was published in the two Daily Newspapers nor there was publication by beat of drum. The notice has also not been fixed on a conspicuous places. It is further submitted that compliance under section 4(1) is mandatory. In support of the aforesaid submissions, learned counsel for the petitioners placed reliance on the decision of the Division Bench of this Court in the case of State of J&K vs. Mani Ram and Anr. AIR 1994 JK 62. It is further submitted that even though the respondents have taken stand in the return that notification under section 4(1) of the Act has been published in the Gazette, however, the petitioners have obtained information under the Right to Information Act and vide commutation dated 24.03.2011, the petitioners have been informed that no notice was sent for publication in office gazette. 5. It is also submitted that the provisions of Section 43 of the Act has also not been complied with as the notices of the proceedings have not been served on the petitioners, which is mandatory, and requirement of compliance of section 5(A) of the Act has been thrown to winds. It is further submitted that the provisions of the section 6 of the Act has also not been complied with, inasmuch as, declaration that the land is required for public purpose has not been published. It is further submitted that the provisions of the section 6 of the Act has also not been complied with, inasmuch as, declaration that the land is required for public purpose has not been published. It is also submitted that no notice as contemplated under sections 9 and 9(a) of the Act for taking possession of land from the petitioners has been published. Though the final award was passed on 17.04.2010 but before passing the award, the possession of the land in question allegedly has been handed over to the respondents on 16.04.2010 i.e. prior to the passing of the award. In support of his submissions, learned counsel for the petitioners placed reliance on the decisions of the Supreme Court in the cases of Sm. Gunwant Kaur and others vs. Municipal Committee, Bathinda and Ors., AIR 1970 SC 801, Narendrajit Singh and another vs. the State of U.P. and another, 1970 (1) SCC 125 , The Collector (Distt. Magistrate), Allahabad and Anr. vs. Raja Ram Jaiswal, AIR 1985 SC 1622 , Patasi Devi vs. State of Haryana and Ors., 2012 (6) Supreme 322 , M/s. V.K.M. Katha Industries Pvt. Vs. State of Haryana and Ors., 2013 (5) Supreme 753 , Civil Appeal Nos. 9353-9354 of 2011, titled J&K Housing Board and Anr. vs. Kunwar Sanjay Krishan Koul and Ors. decided on 04.11.2011 and Civil Appeal No. 4473 of 2000, Kulsum R. Nadiadwala vs. State of Maharashtra and Ors. decided on 17.04.2012 and decisions of this Court in OWP No. 706/1996 decided on 30.03.2003 and OWP No. 1239/2010 decided on 07.09.2011. 6. On the other hand, learned Deputy Advocate General submitted that the proceedings for acquisition of land in question were initiated in accordance with law. It is further submitted that the tentative award was passed on 03.10.2009 and the final award was passed on 17.04.2010, therefore, in view of the law laid down in case of Deputy Commissioner, Dakshina Kannada District vs. Rudolph Fernandes, AIR 2000 SC 1132 , if tentative award remains unchanged the possession of the land in question can be taken. 7. It is further submitted that the tentative award was passed on 03.10.2009 and the final award was passed on 17.04.2010, therefore, in view of the law laid down in case of Deputy Commissioner, Dakshina Kannada District vs. Rudolph Fernandes, AIR 2000 SC 1132 , if tentative award remains unchanged the possession of the land in question can be taken. 7. At this stage, when query was put to the learned Deputy Advocate General, whether notification under section 4(1) of the Act was published in two Daily Newspapers, the learned Deputy Advocate General submitted that the same is not on record, though he is in possession of the copy of Newspaper and wants two days' time to place on record the same. 8. I have considered the submissions of learned Deputy Advocate General. At the beginning of the arguments, when learned counsel for the petitioners commenced his arguments, a query was put to the learned Deputy Advocate General whether this petition can be heard without record, the learned Deputy Advocate General answered in affirmative. I have heard the arguments of the learned counsel for the petitioners for 50 minutes and then I have heard Deputy Advocate General also. Therefore, in the facts and circumstances of the case, I am not inclined to accede to the aforesaid prayer of the learned Deputy Advocate General in the midst of the arguments, as prayer made in the beginning is presumed to have been made with all sense of responsibility. As such, the prayer for adjournment is rejected, which even otherwise has no bearing so far as merits of the case are concerned. 9. It is trite law that the provisions of section 4(1) of the Act are mandatory in nature. In case the same are not complied with the same vitiate the entire acquisition proceedings. It is also pertinent to mention here that section 43 of the Act deals with the service of notice, which reads as under: "43. Service of notice.- (1) Service of any notice under this Act shall be made by delivering or tendering a copy there of signed, in the case of a notice under section 4, by the officer therein mentioned, and in the case of any other notice, by or by order of the Collector or the Judge. (2) Whenever it may be practicable, the service of the notice shall be made on the person therein named. (2) Whenever it may be practicable, the service of the notice shall be made on the person therein named. (3) When such person cannot be found, the service may be made on any adult male member of his family residing with him; and if no such adult male member can be found, the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business, or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the Court-house and also in some conspicuous part of the land to be acquired: Provided that, if the Collector or Judge shall so direct a notice may be sent by post, in a letter addressed to the person named therein at his last known residence, address or place of business and registered in accordance with the rules in force for the time being in that behalf, and service of it may be proved by production of the addressee's receipt." 10. Admittedly, in the instant case, the notice of the proceeding under the Act have not been served on the petitioners in the manner indicated under section 43 of the Act. This fact has also been fortified from the averments made in page 3 of the tentative award dated 03.10.2009, wherein the respondents have admitted that it is not possible to hear the petitioners. Thus, the petitioners have not been given any opportunity to lodge their objections in pursuance of the notice under section 4(1) of the Act and valuable right of the petitioners to lodge their objections to the proceedings under the Act has been taken away from them. The notices under section 9 of the Act have also not been served. Thus, from the above narration of the facts, it is evident that the entire proceedings initiated against the petitioners under the provisions of the Act are vitiated in law. 11. In view of the preceding analysis, the tentative award dated 03.10.2009 as well as final award dated 17.04.2010 insofar as it pertains to the land of the petitioners are hereby quashed. Since the writ petition succeeds on the ground that proceedings under the Act are vitiated, it is not necessary at this stage to deal with the other submissions made by the petitioners. Since the writ petition succeeds on the ground that proceedings under the Act are vitiated, it is not necessary at this stage to deal with the other submissions made by the petitioners. Needless to state that the respondents, if so advised will be at liberty to proceed under the Act afresh. In case the respondents initiate proceedings afresh, the same shall be concluded within a period of six months from the date of initiation of the proceedings. Accordingly, the writ petition is disposed of. Disposed off.